Federal Lawsuit Filed against Shippensburg University for Violation of Settlement Repealing Unconstitutional Speech Codes

In a press release today, FIRE announces that a complaint has been filed in federal court today by attorneys from the Alliance Defense Fund (ADF) against Shippensburg University. The complaint alleges that Shippensburg University has dishonestly reinstituted unconstitutional policies in violation of the terms of a 2004 legal settlement reached with members of FIRE’s Legal Network.

The settlement in 2004 came after the U.S. District Court for the Middle District of Pennsylvania issued a preliminary injunction against the university, ordering Shippensburg’s then-president, Anthony F. Ceddia, not to enforce unconstitutional provisions of Shippensburg’s code. The settlement ended a lawsuit brought by Legal Network attorneys David A. French and William Adair Bonner, and it was the first of a string of victories for our Speech Codes Litigation Project.

As FIRE President Greg Lukianoffsaid, “Shippensburg’s inexplicable violation of the 2004 settlement demonstrates a blatant disregard for the First Amendment and its own promises. By brazenly reneging on the terms of an agreement that previously saved it from an embarrassing defeat in court, Shippensburg has further tainted its tarnished reputation.”

Shippensburg’s earlier speech code banned expression clearly protected by the United States Constitution. For example, the college’s harassment policy defined harassment as “unwanted conduct which annoys, threatens, or alarms a person or group,” and outlawed “emotional abuse.” The code also violated the right of private conscience by requiring that “every member of the community” mirror the official views of the university administration “in their attitudes and behaviors.” In his preliminary injunction against Shippensburg in September 2003, U.S. District Judge John E. Jones III held that many of these provisions “could certainly be used to truncate debate and free expression by students.”

The complaint filed today indicates that Shippensburg has reinserted unconstitutional provisions into current university policy, in many cases restoring language copied seemingly verbatim from the old policies. For example, the 2007-2008 edition of the Swataney, Shippensburg’s student handbook, mandates that “every member of this community” ensure that the official views of the university administration “will be mirrored in their attitudes and behaviors,” and once again prohibits “emotional abuse.” The complaint alleges several other substantive constitutional infirmities, including a challenge to the school’s harassment code.

Our Speech Codes Litigation Project has won crucial victories at Texas Tech University, the State University of New York at Brockport, California’s Citrus College, and San Francisco State University and the California State University System.

Courts have been very unfriendly to speech codes, and I suspect that Shippensburg’s restored code will be no exception.

We will continue to report on developments in this case.