Victory for Free Speech in University of Delaware Lawsuit

Last year, we wrote about the case of University of Delaware student Maciej Murakowski, who was barred from his classes and his dormitory pending a psychiatric examination because of material on his website that another student found offensive and which university officials found "racist, sexist, anti-Semitic, and homophobic." Murakowski soon was suspended and banned from campus altogether. Yesterday, the U.S. District Court for the District of Delaware granted summary judgment to Murakowski on his free speech claim.

Murakowksi had suffered under Delaware's wildly unconstitutional zero-tolerance speech code, which required immediate notification of the authorities, day or night, on account of "[a]ny instance that is perceived by those involved as being racist, sexist, anti-Semitic, homophobic, or otherwise oppressive." The Office of Residence Life considered such instances as emergencies equal to fire, suicide attempts, and alcohol overdoses. After FIRE brought attention to the policy, the speech code was revised in part. The new version still puts "significant bias related acts" on the same emergency level as fire and rape, but only when such incidents "have the potential to create a significant disturbance to the community." The "zero tolerance for hate" policy, though, remains active: "Those who engage in acts of hatred and bias-motivated threats and behavior will be confronted, prosecuted and expelled from our community."

Not only did the court rule in Murakowski's favor on the free speech claim—granting summary judgment—but it also made clear that Murakowski's language was protected speech even if it included website postings that were, as the court declared they were, "racist, sexist, homophobic, insensitive, degrading and contain graphic descriptions of violent behavior, and promote such behavior." Such expression, offensive though it may be, simply does not justify banning someone from campus and forcing him to undergo a psychiatric examination before he is allowed to return.

The court also noted that speech is constitutionally protected when it does not cause a substantial disruption on campus—even if an individual student feels so upset by the speech that she feels threatened by it, and even if university administrators strongly dislike what is being said. That is, the complaining student's reaction, together with the administrative trouble involved in dealing with the situation, was not enough to show a substantial disruption requiring punishment for Murakowski's protected speech.

With such strong standards as these in place, FIRE's case at Colorado College seems all the more ludicrous. In that case, two male students were found guilty of violence for posting flyers that clearly were a parody of a feminist group's flyers. Neither the male students' flyer nor Murakowski's website was a true threat, and neither caused substantial disruption on campus.

Both the University of Delaware and Colorado College invoked the truly horrific shootings at Virginia Tech in order to lend justification to their serious violations of free expression. But as Greg has written before, "we've seen a serious spike in cases where an imaginary threat of 'violence' is the pretext used to punish speech that offends some students or administrators." Invoking Virginia Tech only belittles the real suffering due to truly violent acts. Speech codes lose in court, time after time, and by now, administrators should know better.

The University of Delaware has a "yellow-light" rating from FIRE in our speech codes database for its ongoing threats to freedom of speech. For extensive information about other violations of student rights by Delaware's Office of Residence Life, go here.