California Law to Control Campus Harassment Upheld

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By Bernie Pazanowski

April 12 — A California regulation that allows state universities to discipline students for harassing and intimidating behavior is constitutional, the U.S. Court of Appeals for the Ninth Circuit held April 7.

Darryl Hamm, University Counsel for Fresno State University, Fresno, Calif., told Bloomberg BNA April 12 that he thinks the regulation draws a good balance between the free speech rights universities promote and the need to protect their students.

Plaintiff Neil O'Brien was known at Fresno State for his ties to conservative organizations and for being an outspoken critic of the faculty and administration.

After taking offense to an allegedly anti-American poem in a publication by the Chicano and Latin American Studies Department, O'Brien approached two of the department's professors in their offices to complain. He filmed the encounters but neither professor would talk to him and told him to leave. They both called security.

Although his film shows that O'Brien was calm during the encounters, he was disciplined under California Code of Regulations, tit. 5, §41301(b)(7).

O'Brien sued claiming First Amendment violations.

But the regulation, which allows state universities to discipline student conduct that “threatens or endangers the health or safety of any person … including … intimidation [or] harassment,” isn't overbroad or vague on its face or as applied, the court said in an opinion by Judge William A. Fletcher.

Regulation Not Vague or Overbroad

The appeals court said that the regulation doesn't violate the First Amendment. It's neither overbroad nor vague, because the terms “harassment” and “intimidation” are limited by the phrase “threatens or endangers the health or safety” of another in the university community, it said.

The court added that even if O'Brien remained calm during the encounters, a reasonable person in the professors' position—having an uninvited student continue to ask them hostile questions while filming the episodes—could consider O'Brien's behavior harassing and intimidating.

The court said, however, that O'Brien can pursue a retaliation claim because he alleged he was engaged in protected speech, the defendants' actions may chill similar speech and a reasonable person could conclude that his discipline was motivated by his speech.

Speech Not Chilled

Hamm told Bloomberg BNA that universities promote speech rights at the highest level, but they still have to protect their students from harm and that the regulation does a good job of balancing those two concerns.

Hamm said that the regulation provides an objective standard for the universities to apply and doesn't chill speech. Even so, he said that the outcome in this case was particular to its facts. He added that there will probably be more cases in the future to determine the regulation's limits.

While the university is happy that the regulation was upheld, Hamm pointed out that the court's holding on the retaliation claim was limited to the procedural posture of the case. The court had to accept the allegations in O'Brien's complaint as true, he said.

Hamm explained, however, that the court went to great lengths to make clear that it wasn't deciding “that there was retaliation in this case—noting that a motion for summary judgment may actually be appropriate in this matter—and, perhaps more importantly, it was not deciding that a student who engages in conduct protected by the First Amendment, and then later engages in unprotected conduct that is harassing and intimidating could not be disciplined for that conduct.”

O'Brien's attorney didn't respond to Bloomberg BNA's request for comment.

Judges Marsha S. Berzon and Carlos T. Bea joined the opinion.

Brian C. Leighton of Clovis, Calif., represented O'Brien. The California Attorney General's office represented the defendants.

To contact the reporter on this story: Bernard J. Pazanowski in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

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