Federal Court Orders Shippensburg University Not To Enforce ‘Unconstitutional’ Speech Code
September 5, 2003
FIRE’s Lawsuit To Proceed
SHIPPENSBURG, PA— The United States District Court for the Middle District of Pennsylvania issued a preliminary injunction on Thursday, September 4, 2003, ordering Shippensburg University President Anthony F. Ceddia not to enforce provisions of what the court termed Shippensburg’s “speech code.” The code is being challenged in a lawsuit brought by attorneys in the Legal Network of the Foundation for Individual Rights in Education (FIRE). The court also denied the university’s motion to dismiss the case, allowing it to proceed to trial. Read the court order below.
“This is a great victory and a vital step in the struggle against the scandal of unconstitutional campus censorship at public colleges and universities,” said Thor L. Halvorssen, CEO of FIRE. “Shippensburg faces the legal consequences of trampling the Constitution of the United States. FIRE will now seek to make this preliminary injunction permanent.”
Shippensburg University’s vague and overbroad speech code mandates that student speech should not “provoke, harass, intimidate, or harm another.” The code also outlaws certain thoughts by requiring that “every member of the community” mirror the official views of the university administration “in their attitudes and behaviors.” U. S. District Judge John E. Jones III held that “these provisions could certainly be used to truncate debate and free expression by students.”
Judge Jones appropriately relied upon and quoted precisely the precedent case that FIRE’s Legal Network attorneys cited in the suit. In that 1943 Supreme Court opinion, West Virginia Board of Education v. Barnette, Justice Robert Jackson wrote for the court, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox in politics, nationalism, religion, or matters of opinion or force citizens to confess by word or act their faith therein.”
FIRE Legal Network attorneys David A. French and William Adair Bonner filed the lawsuit against Shippensburg’s administration on April 22, 2003, on behalf of two Shippensburg students. The suit charges that the university’s regulations have an unconstitutional chilling effect on students’ freedom of speech and, further, require that student speech mirror the administration’s views on certain controversial issues. The university argued that the students’ fears were speculative and not grounded in reality. In his decision, Judge Jones agreed with FIRE’s analysis: “Were we to deny a preliminary injunction, the First Amendment rights of Shippensburg University’s students would continue to be violated.”
Judge Jones’s order stated that “it is easy to discern that the provisions of the student code in question were part of an attempt to achieve a utopian community within Shippensburg.” The court noted, however, that good intentions do not justify censorship, explaining that the speech restrictions at Shippensburg would not be constitutional at a public high school, much less at an institution of higher learning.
Judge Jones wrote, “The language of the Code instructs students that they must ‘mirror’ the University’s ideals as they apply to racial tolerance, cultural diversity and social justice,” a requirement that he found patently unconstitutional.
“The fundamentally important message that Judge Jones is sending to the administrators of Shippensburg and, by implication, to other administrators of public universities around the country,” said FIRE Co-Director Harvey Silverglate, “is that student speech may not be banned merely because the listener takes offense at what is said or because student speakers wander from an official line.”
“It is no longer permissible for university administrators at Shippensburg to establish a single acceptable belief,” observed FIRE Legal Network attorney David A. French.
The court’s ruling is not the final word in this case. Shippensburg’s President Ceddia may appeal Judge Jones’s decision to the U. S. Court of Appeals for the Third Circuit, which has jurisdiction over Pennsylvania and several surrounding states. “We are confident that our First Amendment position will survive an appeal,” added Silverglate, “because the Third Circuit has been a national leader in protecting First Amendment rights from efforts to censor speech in the interest of perceived ideological correctness.”
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, freedom of conscience, and due process on our nation’s campuses. FIRE has challenged speech codes at three colleges and universities thus far in its speech code litigation project. Please visit www.thefire.org to read more.
Thor L. Halvorssen, Chief Executive Officer, FIRE: 215-717-3473; firstname.lastname@example.org
Harvey A. Silverglate, Co-Director, FIRE: email@example.com
David A. French, Attorney: 859-231-8500; firstname.lastname@example.org
William Adair Bonner, Attorney: 610-566-2703; email@example.com
Anthony F. Ceddia, President, Shippensburg University: 717-477-1301, firstname.lastname@example.org