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Watchdog group puts colleges on notice over First Amendment

Last September, a Modesto Junior College student was stopped by a campus police officer for circulating copies of the U.S. Constitution on campus without a permit.

“You need permission from the student development office,” the officer told him in the Sept. 17 videotaped encounter.

The action then shifted to an administrative office where a woman offered to help him schedule time in the the “free speech zone” — a 25 square-foot piece of concrete on a corner of campus set 30 yards off the nearest walkway. The zone needed to be scheduled days or weeks in advance, she said.

The conflict in Modesto is just one pixel in a nationwide picture as public colleges and universities around the country struggle to balance conflicting demands. On one side, many students and faculty want the campus to be a safe space, free from insults and discord. On the other, is the argument that a public campus is not a private club but more like a city street where robust debate and even insulting speech are strictly protected.

"I think there is a lack of understanding on college campuses about what the First Amendment requires,” said Robert Corn-Revere, a Washington, D.C.-based First Amendment expert and a partner at Davis Wright Tremaine, one of the nation’s most prominent law firms.

Estimates of significant restrictions on campus speech vary, but the Foundation for Individual Rights in Education currently puts 58 percent of the 400 campuses they survey in “red light” status, meaning they have policies the foundation says restrict free speech in a way that's unconstitutional.

Speech restrictions come in a wide assortment of flavors. Recently, at Chicago State University, an anti-bullying policy was used to suppress a faculty blog. At Iowa State a student was told not to wear a T-shirt with a marijuana leaf. At Ohio University, a student got in trouble for wearing a T-shirt with an off-color pun.

Corn-Revere has been working with FIRE, which sued Modesto Junior College last fall over the incident and the policies that drove it. In February of this year, the school settled, paying $50,000 in legal fees and damages and dropping all "speech zone" restrictions.

At least one observer was not surprised at the outcome: “FIRE picks winners, and they are always legally precise on First Amendment issues,” said Brett Sokolow, President & CEO of the NCHERM Group, a law firm that works with over 50 colleges and universities to craft codes and policies.

But FIRE grew tired of playing Whac-a-Mole. The group announced last month that lawsuits will now be their first resort, to be filed against public colleges in each federal judicial circuit. After each victory or settlement, FIRE will sue another school in the same circuit.

To launch the new initiative, FIRE filed four lawsuits last week by targeting colleges in California, Iowa, Hawaii and Illinois. Davis, Wright, Tremaine will play key roles in this offensive, and the schools they target can expect, Corn-Revere said, to be paying legal fees and damages.

The very week that FIRE made its announcement, a student group at Boise State University in Idaho was forced to pay a special “security fee” for bringing a pro-gun rights speaker to campus. FIRE promptly notified the school that if the fee were not refunded it would file suit.

Avoiding offense

The rise of speech restrictions on campus appears to be closely tied to greater diversity on campus, blended with an impulse to create a safe environment where historic offenses and degradations are curbed. The urge to protect against offense thus runs head-on against the constitutional mandate not to regulate speech.

Numerous universities have sought to achieve thought conformity in the name of diversity, including Virginia Tech, which in 2009 sought to institute a litmus test on attitudes toward diversity for faculty, and the the University of Delaware, which in 2008 had planned to employ resident assistants to explore and help shape students' ideological perspectives on a range of sensitive topics until FIRE intervened and scotched the program.

The Supreme Court held in 1973 that “the mere dissemination of ideas - no matter how offensive to good taste - on a state university campus may not be shut off in the name alone of 'conventions of decency." The student in Healy v James was expelled from the University of Missouri for publishing an offensive cartoon and for using offensive epithets.

“It’s an understandable impulse,” said Eugene Volokh, a UCLA law professor, “but from a First Amendment perspective ‘disrepect’ a particular kind of viewpoint.”

One of the key “hate speech” court decisions, Volokh notes, occurred in 1940 and involved inflammatory criticisms aimed by Jehovah’s Witnesses toward Catholics on a public street.

There is no way to control offenses based on gender, race, religion or sexual orientation, Volokh notes, without empowering the state to regulate speech based on viewpoint.

Calculating risk

For 15 years FIRE has used finesse, said Robert Shipley, the group's senior vice president. They have written letters and leveraged public pressure, often with success, but always on a case by case basis. Altogether, FIRE has filed fewer than 10 lawsuits over 15 years, choosing instead to cajole and threaten. Now, they expect to file much more frequently.

Progress has been real, Shipley says. FIRE rates over 400 colleges and universities on First Amendment compliance, and the “red light” schools which it views as in violation, which once comprised 78 percent of that sample, have dropped to 58 percent today.

“But that’s not enough of a decline,” Shipley said. “The correct number is zero.”

The real problem, he said, is that administrators see speech restrictions as safer than allowing unhampered speech to create offenses. Groups that take offense have, up until now, been far more likely to agitate than those whose First Amendment rights have been curtailed. FIRE’s aim with its new litigation project is to even the scales of calculation, making it more risky and costly to restrict speech.

Sokolow’s numbers are lower than FIRE’s. He estimates that 25 or 30 major colleges and universities have speech codes that are over broad in their drafting or have been applied unconstitutionally: “Many still haven’t gotten the message,” he said.

Private schools

The First Amendment applies only to public colleges and universities as creatures of the state. Private schools, particularly private religious schools, are generally exempt.

“Many Christian colleges are quite up front with their students in their contractual commitments,” Corn-Revere said. “They do not promise people that they will adhere to the same constitutional rights and when you sign and pay tuition to go to those colleges you agree to those terms.”

One exception to the private exemption, Corn-Revere notes, is that many private colleges make clear promises of free expression and due process and that puts them under a contractual obligation to respect those values.

Earlier this year Loyola University Chicago, a private Catholic school, incurred FIRE’s ire when the school announced that postings on a student group’s “free speech wall” in a commons area would be censored if “indecent, grossly obscene, or grossly offensive” or “contrary to the University’s Catholic, Jesuit mission and heritage.”

FIRE noted in a letter to the school, that LUC had in place firm policy statements embracing free expression on campus. FIRE argued that the proposed standards were vague and contrary to the school’s free speech commitments. LUC ultimately backed down.

Enforcing civility

At first blush, FIRE’s list of accomplishments seems aimed at making the campus experience a whole lot more rude and hostile.

At Temple University FIRE helped overturn a code prohibiting expression that creates an “intimidating, hostile or offensive environment.” At San Francisco State it took down a policy requiring students “to be civil to one another.” At Michigan it overturned a rule against speech that “stigmatized” others or created a “hostile” or “demeaning” environment, and at Texas Tech it got rid of a code that banned “threats, insults, epithets, ridicule or personal attacks.”

“Many people aren’t comfortable with free speech and demand a certain level of intellectual comfort,” Shipley said, noting that Canada and the United Kingdom embrace quite restrictive speech regulations pursuit of comity.

One of the key cases in First Amendment lore is the 1977 decision in which the Supreme Court paved the way for a group of Neo-Nazis to parade with the Nazi swastika in Skokie, Illinois, a city that not coincidentally was heavily Jewish and home to a number of Holocaust survivors. Those opposed to the march held that parading the swastika was tantamount to physically attacking those survivors.

In the end, the Skokie parade never was actually held but the precedent was set that no matter how offensive, political speech is protected under the First Amendment.

“I think that certain academic and cultural trends have led some to believe that there is a ‘right’ never to be offended, that they can guarantee that ‘right’ with regulation, and that this ‘right’ is can override the rights guaranteed by the Constitution,” said Corn-Revere.

"FIRE’s point is that you can’t try to enforce civility,” Sokolow said. “You have to teach it. Civility codes are the least effective way to bring about a climate of tolerance and civility. You can’t punish someone into not being a bigot. And imposing restrictions never flies with the court.”

Email: eschulzke@desnews.com