Third Circuit delivers a victory for free speech on campus with DeJohn ruling

Will Creeley [Director of Legal and Public Advocacy, Foundation for Individual Rights in Education]: "Yesterday's Third Circuit ruling [opinion, PDF] in DeJohn v. Temple University is a important victory for free speech on campus.

In declaring Temple's former sexual harassment policy unconstitutionally broad, the Third Circuit delivered a reaffirmation of existing Supreme Court jurisprudence regarding the robust First Amendment rights enjoyed by students at our nation's public universities. It also dealt another serious blow to the widespread and surprisingly durable practice of restricting student speech at public universities via unconstitutional speech codes masquerading as harassment policies. What's more - and perhaps most importantly - the Third Circuit's ruling also sent a much-needed signal that there exists a crucial distinction between the rights of high school students and the rights of college students. Simply put, DeJohn is a powerful opinion for the expressive rights of students, the influence of which will be felt for years to come.

First, it's useful to remember the special niche public universities have long occupied in the Supreme Court's First Amendment jurisprudence. That the First Amendment's protections fully extend to the public university campus is settled law, as the Third Circuit's ruling acknowledges by citing Keyishian v. Bd. of Regents, State Univ. of N.Y., 385 U.S. 589, 605-06 (1967) ("[W]e have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment."); Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted) ("the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'"); and Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) ("With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.")

But even with the Supreme Court's seemingly unambiguous pronouncements on the applicability of First Amendment rights for public university students - and a string of legal defeats in courts across the country during the 1990s - unconstitutional speech codes have flourished at campuses around the nation.

As Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE), I know all too well the shocking extent of the problem. Despite a legal and moral obligation to guarantee their students' constitutional rights, a recent FIRE report (Spotlight on Speech Codes 2007: The State of Free Speech on Our Nation's Campuses) found that 79% of the 244 public universities surveyed maintained at least one policy that both clearly and substantially restricts freedom of speech (as gauged by established legal precedent).

Many of these unconstitutional speech codes are far worse than Temple's former sexual harassment policy, at issue in DeJohn. For example, in Mississippi, Delta State University's harassment policy provides that harassment occurs when the work or learning environment "is one that a reasonable person would objectively find hostile or abusive or one that the particular person who is the object of the harassment perceives to be hostile or abusive." Like the Temple policy in DeJohn, Delta State's policy contains absolutely no requirement that the objectionable behavior be "severe" and "pervasive," as required by the standard established by Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 652 (1999). As the DeJohn court correctly noted, policies lacking these crucial prongs "provide...no shelter for core protected speech." Equally bad is Saginaw Valley State University's Policy on Discrimination, Sexual Harassment and Racial Harassment [PDF], which defines sexual harassment, in part, as "degrading comments or jokes." Obviously, this is a world away from the exacting standard announced in Davis.

Unfortunately, university harassment policies are the polices most likely to be drawn in such an overbroad way as to curtail substantial amounts of protected speech. Indeed, nearly every case involving a university speech code since 1989 has involved a university harassment policy - and in every case that has produced an opinion, university speech codes have failed to pass constitutional muster. Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); Dambrot v. Cent. Mich. Univ., 839 F. Supp. 477 (E.D. Mich. 1993) (declaring university discriminatory harassment policy facially unconstitutional); The UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth).

And far too often, FIRE has witnessed absurdly overbroad redefinitions of harassment being used to punish unpopular, impolite or unwanted - but protected - speech. In one remarkable recent example, a student-employee at Indiana University - Purdue University Indianapolis was found guilty of "racial harassment" for reading a book at work that celebrated the defeat of the Ku Klux Klan in a 1924 street brawl. Or there's the case at New Jersey's William Paterson University, where a Muslim student-employee was found guilty of sexual harassment for describing homosexuality as a "perversion" in a private e-mail to a professor. Private schools - though not explicitly bound by the First Amendment, but obligated nevertheless by their own extensive promises of freedom of speech in student handbooks and other materials - are just as bad, as evidenced by recent cases at Brandeis (where a professor was found guilty of racial harassment for criticizing the use of the word "wetback" in class) and Tufts (where a student newspaper was found guilty of harassment for publishing an article containing unflattering but true facts about Islam). Unfortunately, FIRE's case archives are full of cases of equally brazen abuses of university harassment codes, with overzealous college administrators invoking harassment policies to silence protected speech.

Temple's former sexual harassment policy has become the latest in a long line of speech codes to fail in court. Hopefully, with the weight of the Third Circuit behind the ruling, public universities will finally get the message: Harassment policies must be carefully tailored so as to target only that speech which constitutes "true harassment" under binding Supreme Court precedent.

Lastly, but perhaps most importantly, yesterday's opinion reaffirmed the difference between the First Amendment rights of high school and college students. This is a welcome rebuke to Temple's argument that under the Supreme Court's ruling in Morse v. Frederick, 127 S. Ct. 2618 (2007) (holding that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use") the university's sexual harassment policy was a legitimate restriction on the rights of college students. While Temple contended in their brief that Morse gave the university the power to restrict any "student's speech that is inconsistent with its 'basic educational mission,'" the Third Circuit explicitly acknowledged that "there is a difference between the extent that a school may regulate student speech in a public university setting as opposed to that of a public elementary or high school." Indeed, the Third Circuit concluded that "[d]iscussion by adult students in a college classroom should not be restricted."

This is a crucial distinction. As FIRE argued in the amici brief [PDF] we filed jointly with the American Civil Liberties Union of Pennsylvania and the Student Press Law Center, among others, conflating the rights of college students with high school students fundamentally confuses the unique pedagogical necessities of education at the high school and college levels. The Supreme Court has recognized the different missions of each level of schooling. High school students must learn "the habits and manners of civility" to prepare for citizenship. Bethel Sch. Dist. v. Fraser, 487 U.S. 675, 681 (1986). But college students and teachers "must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die." Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Further, the vast majority of college students are adults, almost uniformly old enough to vote for our nation's leaders and serve our country in war. As such, they are entitled to the full protection of the First Amendment. Thankfully, the Third Circuit's clarity on this point should go a long way towards ending the disturbing trend, seen most notably in the Seventh and Ninth Circuits (Hosty v. Carter, 412 F.3d 731, 740 (7th Cir. 2005); Flint v. Dennison, 2007 U.S. App. LEXIS 12628 (9th Cir. 2007)), to blur the rights of college students with those of high schoolers."