Majority of Ivy League Violates Speech Rights? House Hearing Targets Public College Policies

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By Jeffrey D. Koelemay

June 3 — Five of eight Ivy League schools and almost 55 percent of all public colleges and universities violate their students' and faculties' First Amendment rights, according to witness testimony at a June 2 hearing of the House Judiciary Subcommittee on the Constitution and Civil Justice.

When it comes to faculty speech, federal appellate courts are split on whether the First Amendment protects professors' speech and writings performed as part of their “official duties.”

The Fourth and Ninth circuits have held the First Amendment protects such academic speech, but the Sixth and Seventh circuits have disagreed, according to Bloomberg BNA research.

As for student religious groups, bylaws that require an affirmation of faith from members often butt heads with schools' nondiscrimination policies, one witness testified.

Rep. Trent Franks (R-Ariz.), the subcommittee chairman, expressed concern about a trend of “misunderstanding of tolerance as applied to evangelical Christian groups.”

It's surprising “how badly Christian groups are often treated,” Franks said.

Student demonstrations were another point of discussion, as designated “free speech zones” on campuses unconstitutionally restrict speech on the remainder of campus, two witnesses said.

Many schools' free speech policies are remnants of 1960s, 1970s and 1980s efforts to rein in the disruption of Vietnam War, civil rights and anti-apartheid protests, according to Rep. Steve Cohen (D-Tenn.).

They were things that “seemed like a positive idea at the time,” but haven't ever been re-evaluated, he said.

‘Intellectual Elite Liberals' on ‘Red Light' List

The Foundation for Individual Rights in Education, Philadelphia, recently reviewed “speech codes” and other policies at 333 public colleges and universities, and 437 schools overall, giving 54.1 percent of the public schools a “red light rating,” president Greg Lukianoff testified.

“A red light institution is one that has at least one policy that both clearly and substantially restricts freedom of speech, or that bars public access to its speech-related policies by requiring a university login and password for access,” according to the study .

Five Ivy League schools made the “red light” list—Columbia University, New York; Dartmouth College, Hanover, N.H; Harvard University, Cambridge, Mass.; the University of Pennsylvania, Philadelphia; and Princeton University, Princeton, N.J.

“Intellectual elite liberals” have “taken over” college campuses, and “become the most intolerant folks,” Rep. Louie Gohmert (R-Texas) said.

“They've totally lost the founding of the country,” he said.

Since public schools are state actors, and “legally bound to protect their students' First Amendment rights, any percentage above zero is unacceptable,” Lukianoff said.

And even though “the presence of state action may arguably be missing” for most private schools, there's no reason free speech principles shouldn't apply there as well, Professor Jamin B. Raskin of the American University Law College, Washington, testified.

“At least to the extent that the institutions want to think of themselves as universities as opposed to centers of dogma and propaganda,” Raskin said.

‘Unfair' to Evangelical Groups

Many schools have policies that prohibit requiring an affirmation of faith as a prerequisite for membership or leadership positions in a religious student group, Kimberlee Colby of the Center for Law and Religious Freedom, Springfield, Va., testified.

This creates a double standard with fraternities and sororities, which are permitted to discriminate based on sex, she said.

“What they're really saying is every Christian group has to be a Unitarian group,” Colby said. “It's a problem with maintaining their identity,” she said.

“It's an extreme abridgement of the freedom to assemble,” Gohmert said. “It's unfair and un-American,” he said.

No, “that's democracy,” Cohen said. “It's part of society, part of law, part of life—it's tough,” he said.

“Groups elect the leaders. They can still elect anyone they want, as long as there's not a factor in the election that isn't a democratic process,” Cohen said.

Supreme Court Rejects Evangelical Argument

In 2010, the U.S. Supreme Court rejected a First Amendment challenge to a school's “accept-all-comers” policy, in Christian Legal Soc'y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661 (2010) (78 U.S.L.W. 1876, 6/29/10).

There, Hastings Law College, San Francisco, denied registered student organization status to a Christian group whose bylaws required a “statement of faith” for membership, including barring anyone engaging in “unrepentant homosexual conduct,” among other things.

The high court held that Hastings's nondiscrimination policy was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.”

“ ‘In the end,' as Hastings observes, ‘CLS is simply confusing its own viewpoint-based objections to . . . nondiscrimination laws (which it is entitled to have and [to] voice) with viewpoint discrimination,' ” the court said.

“CLS's conduct—not its Christian perspective—is, from Hastings' vantage point, what stands between the group and RSO status,” the court said.

Circuit Split on Faculty Speech

In 2006, the Supreme Court held that a public employee's speech made pursuant to official duties is not protected by the First Amendment, so the employee is not insulated from employer discipline, in Garcetti v. Ceballos, 547 U.S. 410 (2006) (74 U.S.L.W. 1713, 5/30/06).

However, the high court expressly declined to decide whether an academic freedom exception is warranted for the speech and writing of professors at public colleges and universities. The public employee in Garcetti was a police officer.

“We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching,” the high court said in that case.

Federal appellate courts have subsequently split on the issue.

The Fourth and Ninth circuits have held that Garcetti doesn't apply to academic speech, in Adams v. Trs. of the Univ. of North Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011) and Demers v. Austin, 746 F.3d 402 (9th Cir. 2014) (82 U.S.L.W. 353, 9/10/13).

But the Sixth and Seventh circuits have declined to find such an exception, in Savage v. Gee, 665 F.3d 732 (6th Cir. 2012) and Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).

Lukianoff said Congress should enact a statute to clarify Garcetti's scope. “We'd like the government to chime in,” he told Bloomberg BNA after the hearing.

‘Free Speech Zone' Litigation Successful

In the last two years, the Foundation for Individual Rights in Education has supported six lawsuits challenging “free speech zones,” Lukianoff said.

“So far, no school has tried to defend its free speech zone in court,” he said.

Three cases have settled, two schools agreed to a moratorium pending settlement discussions, “and the last was only sued a few weeks ago,” Lukianoff said.

Two federal district courts have expressly held free speech zones unconstitutional, Lukianoff said.

The Northern District of Texas held a free speech zone unconstitutional in 2010, in Smith v. Tarrant Cnty. Coll. Dist., 694 F. Supp. 2d 610 (N.D. Tex. 2010); and the Southern District of Ohio followed suit in 2012, in Univ. of Cincinnati Chapter of Young Ams. for Liberty v. Williams, 2012 BL 145493 (S.D. Ohio 2012), according to Lukianoff.

Should Congress Act?

Lukianoff presented three sample bills Congress could pass “to advance the cause of student and faculty rights” as part of his testimony.

We want to “make the legal thicket for students simpler,” Lukianoff told Bloomberg BNA.

His proposed legislation hasn't yet been picked up by any member of Congress, but “we're advocating, very publicly,” Lukianoff said.

The sample bills ask Congress to:

  •  require universities to implement anti-harassment policies that “precisely track” the U.S. Supreme Court's definition of harassment from Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) (67 U.S.L.W. 1700, 5/25/99);
  •  establish by statute that outdoor areas on public campuses are traditional public forums, prohibiting “free speech zones,” (Virginia was the first state to do this, in 2014, with Va. Code Ann. §23-9.2:13 ); and
  •  make clear that academic speech is protected by the First Amendment.

However, “perhaps the most important thing for Congress to do legislatively is—not very much,” Wendy Kaminer , an author and laywer who has written prominently on the issue, testified.

Congress “should be wary of enacting bad law,” she said.

“Freedom of speech is freedom from government interference. It depends on official inaction,” Kaminer said.

Lukianoff agreed, to some extent. “We don't want to make matters any worse,” he told Bloomberg BNA.

By Jeffrey D. Koelemay

To contact the reporter on this story: Jeffrey D. Koelemay in Washington at jkoelemay@bna.com . To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

A copy of FIRE's “speech codes” study is at http://pub.bna.com/lw/FIRE_SpeechCodes2014.pdf .

Text of Va. Code Ann. §23-9.2:13 is at http://pub.bna.com/lw/VAHB258_2014.pdf .

Video of the hearing and written witness statements are at http://judiciary.house.gov/index.cfm/2015/6/first-amendment-protections-on-public-college-and-university-campuses .

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