THE INTERSECTION OF TITLE VI, TITLE IX, THE FIRST AMENDMENT AND ACADEMIC FREEDOM June 28-July 1, 2015
Pedro A. Ramos
Schnader Harrison Segal & Lewis LLP
Barbara A. Lee
Rutgers University and
Locke Lord LLP I.
Introduction
While colleges and universities must comply with the requirements of Title VI and Title
IX and maintain an environment free of harassment on the basis of race, national origin and sex,
the academic freedom of faculty and the first amendment rights of faculty at public institutions1
must also be protected. How can an institution balance the differing interests and protections
afforded to students and faculty? How far may institutions go to regulate faculty members’
speech and conduct in and outside of the classroom to prevent harassment and promote civility?
This paper will review the legal implications of potential clashes between claims of
discrimination and potential academic freedom protections (or violations). After a brief
discussion of the requirements of Titles VI and IX, we will review the parameters of academic
freedom and then discuss how the concept of civility, or collegiality, interacts with
nondiscrimination, free speech, and academic freedom both in and beyond the classroom.
II.
Overview of Titles VI and IX
Educational institutions that receive public funds are prohibited from discriminating on
the basis of race or sex by way of Title VI of the Civil Rights Act of 1964 and Title IX of the
Education Amendments of 1972, as well as the statutes’ respective implementing regulations.2
Title VI prohibits discrimination on the basis of race, color, and national origin.3 Title IX
prohibits discrimination on the basis of sex,4 including harassment, which encompasses acts of
1
First Amendment principles may apply to private colleges and universities, as discussed in Section III.D. infra. All public and private universities who receive federal assistance, directly or indirectly, must comply with Title VI and Title IX. Private schools frequently receive indirect federal assistance when they accept students who pay tuition with federal financial aid distributed directly to students. See Grove City College v. Bell, 465 U.S. 555, 564
(1984). 3
42 U.S.C. § 2000d. The statute provides in full: “No person in the United States shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
4
20 U.S.C. § 1681; 34 C.F.R. § 106.1 et seq.; DOE Significant Guidance, Dear Colleague Letter: Sexual Violence
(Apr. 4, 2011), http://www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf.
2
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verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sexstereotyping, even if those acts do not involve conduct of a sexual nature.5
Title VI and IX place significant responsibilities on public and private colleges and
universities. Schools violate these statutes if: (1) harassment by professors or peers based on
race, color, national, origin, or sex is sufficiently serious that it creates a hostile environment;
and (2) the school encourages such harassment, tolerates it, ignores it, or does not adequately
address it.6 The goals of these statutes are undeniably laudable. But insofar as they regulate
speech, such regulation can, at times, come into conflict with the principles enshrined in the First
Amendment. To better understand that conflict, we provide a review of Title VI and Title IX,
focusing on the impact each has on First Amendment freedoms.
A. Race, National Origin, Ethnicity
“Passed as part of the Civil Rights Act of 1964, Title VI had a single overriding purpose:
‘to make sure that the funds of the United States are not used to support racial discrimination.’”7
By its plain language, the statute prohibits discrimination on the basis of race, color, national
origin, or status as a language minority, in all programs that receive federal financial assistance.
In addition to race, color, and national origin, Title VI prohibits discrimination of language
minorities, or “English learners.” Although “majestic in its sweep,”8 the statute provides little
guidance to covered entities. As such, the scope of the statute, the types of discrimination that it
prohibits, and the remedies available under the statute have been clarified through implementing
regulations and case law.
While both the Department of Justice (“DOJ”)9 and Department of Education (“DOE”)10
have promulgated implementing regulations under Title VI, the DOE’s Office of Civil Rights
(“OCR”) has the primary responsibility to enforce the statute. To provide guidance to entities
covered under Title VI, the DOE lists specific discriminatory actions that the statute prohibits. A
covered entity violates Title VI with disparate treatment11 or disparate impact discrimination.12
Under the regulations, applicants for federal financial assistance must submit written
assurances that the program or activity will comply with Title VI.13 Educational institutions
must also make their antidiscrimination policies available to participants, beneficiaries, and other
5
20 U.S.C. § 1681(a). DOE Significant Guidance, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010) http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. 7
United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1043 (5th Cir. 1984) (quoting 11 Cong. Rec. 6544
(comments of Senator Humphrey)).
8
Bakke v. Regents of the Univ. of Cal., 438 U.S. 265, 284 (1978). 9
See 28 C.F.R. § 50.3 (DOJ Title VI Enforcement Guidelines); 42 C.F.R. §§ 42.101-42.112 (DOJ Title VI Implementation Guidelines).
10
See 34 C.F.R. §§ 100, 101 (DOE Title VI implementing regulations). 11
34 C.F.R. § 100.3(b). “Disparate treatment” is defined as intentional discrimination and refers to “policies or
practices that treat individuals differently based on their race, color, [or] national origin.” 65 Fed. Reg. 68,051
(2000). 12
“Disparate impact” refers to “criteria or methods of administration that has a significant disparate effect on individuals based on race, color, [or] national origin.” Id.
13
34 C.F.R. § 100.4(a).
6
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interested parties.14 And, the implementing regulations require educational institutions to adopt
and publish grievance procedures designed for prompt and equitable resolution of student and
employee complaints that allege any action that would constitute a violation of Title VI.
Educational institutions are required to keep and submit to the DOE compliance reports and
maintain records to assist the agency in determining whether the institution is satisfying Title
VI’s requirements.15 Moreover, Title VI requires colleges and universities, upon notice of such
activity, to take immediate action in response to harassment from professors or peers based on
race, color, national origin, or language status that is sufficiently serious to create a hostile
environment.16
While Title VI was instrumental in combating segregation, some of its more famous
applications occurred in suits challenging the use of race in making college and university
admissions decisions. In a series of cases, beginning with Regents of University of California v.
Bakke,17 and including more recently Gratz v. Bollinger,18 Grutter v. Bollinger,19 and Fischer v.
University of Texas,20 the Supreme Court determined that Title VI and the Equal Protection
Clause of the Fourteenth Amendment permit the use of race as one factor, among many, in
making admissions decisions.
Recent applications of Title VI include its use to combat bullying. As part of the
increased efforts of schools, ranging from elementary to postsecondary, to combat bullying, the
OCR released substantial guidance clarifying that bullying may trigger the schools’ obligations
under Title VI.21 When peer harassment based on race, color, national origin, or language status
“is sufficiently serious that it creates a hostile environment,”22 schools may be liable under Title
VI. “Harassment creates a hostile environment when the conduct is sufficiently severe,
pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or
benefit from the services, activities, or opportunities offered by a school.”23
Moreover, and importantly for our purposes, the OCR recognizes that harassing conduct
covered under Title VI extends beyond physical conduct. Prohibited harassment under Title VI
includes “verbal acts and name-calling; graphic and written statements, which may include the
use of cell phones or the internet;” as well as “other conduct that may be physically threatening,
harmful, or humiliating.”24 The OCR recognizes, however, that “[s]ome conduct alleged to be
harassment may implicate the First Amendments rights to free speech or expression.”25
14
Id.
34 C.F.R. § 100.6(b). 16
DOE Significant Guidance, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010) http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. 17
438 U.S. 265 (1978). 18
539 U.S. 244 (2003). 19
539 U.S. 306 (2003). 20
570 U.S. — (2013). 21
DOE Significant Guidance, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010). http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. 22
Id. at 1. 23
Id. at 2. 24
Id.
25
Id. at 2 n.8.
15
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The OCR, under the Obama Administration, has been active in enforcing Title VI.26 The
OCR has applied Title VI to a range of behaviors, from racial harassment to retaliation discipline
and grading issues.27
B. Gender and Gender Identity
Title IX of the Education Amendments of 1972 (“Title IX”) and the Jeanne Clery
Disclosure of Campus Security Policy and Campus Crime Statistics Act (the “Clery Act”)28 have
been subject to significant changes and scrutiny, particularly as they relate to sexual misconduct.
Generally, Title IX prohibits institutions receiving Federal financial assistance from, on
the basis of sex, excluding any person from participation, denying the benefits of or
discriminating under any education program or activity. 29 For many years, Title IX has been
associated with gender equity in athletics. However, Title IX and its implementing regulations
also create a comprehensive scheme to prevent sexual harassment, including sexual violence.
Under Title IX, “[i]f a school knows or reasonably should know about student-on-student
harassment that creates a hostile environment, . . . the school must take immediate action to
eliminate the harassment, prevent its recurrence, and address its effects,” even if the victim does
not want to file a complaint.30 This includes, among other things, requiring school employees to
report the incident(s) to the school Title IX coordinator or other appropriate school officials.31
Hence, the OCR recommends providing Title IX training to any employee “likely to witness or
receive reports of sexual harassment or violence, including teachers, school law enforcement unit
employees, school administrators, school counselors, general counsels, health personnel, and
resident advisors.”32 Moreover, under the Clery Act,33 as amended by the Violence Against
Women Reauthorization Act of 2013, schools are required to compile and report statistics for
incidents of domestic violence, dating violence, sexual assault, and stalking.34 Such incidents
may include speech that would cause a reasonable person to suffer emotional distress.35
Harassment prohibited by Title IX can take many forms, ranging from “quid pro quo
harassment”36 to “hostile environment harassment.” 37 Included within Title IX is the prohibition
26
See generally Office of Civil Rights, Title VI Enforcement Highlights (July 2012),
https://www2.ed.gov/documents/press-releases/title-vi-enforcement.pdf.
27
Id.
28
20 U.S.C. § 1092(f)(18). 29
20 U.S.C. § 1681(a). 30
DOE Significant Guidance, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), http://www.whitehouse.gov/
sites/default/files/dear_colleague_sexual_violence.pdf.
31
Id.
32
Id.
33
The Jeanne Clery Disclosure of Campus Security and Policy and Campus Crime Statistics Act, 20 U.S. C. § 1092(f) 34
DOE Significant Guidance, Dear Colleague Letter: Implementation of Changes to the Clery Act made by the Violence Against Women Reauthorization Act of 2013 (July 14, 2014),
http://www.ifap.ed.gov/dpcletters/GEN1413.html.
35
See 20 U.S.C. § 1092(f); see also 34 C.F.R. § 100.3(b).
36
Quid pro quo harassment occurs when a school employee bases an education decision on the student’s submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal or physical conduct of a sexual
nature. See, e.g., Kadiki v. Va. Commonwealth Univ., 892 F. Supp. 746, 752 (E.D. Va. 1995).
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of gender-based harassment, which encompasses speech based on sex or sex-stereotyping.38
Title IX applies to student-on-student harassment when the institution knows, or should have
known, of the harassment. Once on notice, a school is required to take immediate and
appropriate steps to eliminate the hostile environment, prevent its recurrence, and remedy its
effects.
The Department of Education Office for Civil Rights is charged with interpreting and
enforcing Title IX and has issued significant guidance documents over the last several years,
most recently by way of its 53-page Question and Answers on Title IX and Sexual Violence,
defining and clarifying its April 2011 Dear Colleague Letter (which did not expressly address
First Amendment concerns). The Department explained in the Q&A that:
[T]he laws and regulations it enforces protect students from prohibited discrimination and
do not restrict the exercise of any expressive activities or speech protected under the
U.S. Constitution. Therefore, when a school works to prevent and redress
discrimination, it must respect the free-speech rights of students, faculty, and other
speakers.
Title IX protects students from sex discrimination; it does not regulate the content of
speech. OCR recognizes that the offensiveness of a particular expression as perceived by
some students, standing alone, is not a legally sufficient basis to establish a hostile
environment under Title IX. Title IX also does not require, prohibit, or abridge the use of
particular textbooks or curricular materials.39
The Clery Act requires the University to disclose information about specified crimes on
and around campus, including issuing timely warnings of acts that constitute an immediate threat
to students and employees on campus. The Clery Act amendments that became effective March
7, 2014, require institutions to report on new categories of sexual assault, domestic violence,
dating violence, and stalking.40 The Clery Act amendments also expand reporting of liquor law
violations, drug law violations, and illegal weapons possession to referrals for disciplinary action
and not just arrests. In addition, schools may now remove unfounded reports from their
statistics, although they must disclose such unfounded reports in their annual security report and
to the Department of Education. Additional requirements include specific elements of grievance
and reporting procedures, mandated trainings, and required notices.
37
Hostile environment harassment can occurs when sexually harassing conduct (which can include unwelcome
sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature) by a
school employee or student is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in
or benefit from an education program or activity. See, e.g., Lipsett v. Univ. of P.R., 864 F.2d 881, 903-04 (1st Cir.
1988).
38
DOE Significant Guidance, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), http://www.whitehouse.gov/
sites/default/files/dear_colleague_sexual_violence.pdf.
39
DOE Significant Guidance, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014) at 43 (citing
34 C.F.R. § 106.42) (emphasis added).
40
Although beyond the scope of this paper, it is important to note that stalking frequently encompasses speech;
specifically, communications to or about a person that would cause a reasonable person to suffer from substantial
emotional distress. See DOE Significant Guidance, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011),
http://www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf.
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The detailed regulations interpreting the Clery Act amendments, published at 34 C.F.R.
§ 668.46, became law in November of 2014 and take effect in July of 2015. The regulations
provide definitions for the new reportable crimes,41 including changing the definition of sexual
offenses to include rape. Key terms are also defined such as “awareness programs,” “bystander
intervention,” “ongoing prevention and awareness campaigns,” “primary prevention programs,”
“risk reduction,” “advisor,” “proceeding,” and “result.”
Universities must provide definitions of the standard of evidence used in dating
violence, domestic violence, sexual assault and stalking complaints, but neither the Act nor the
regulations provide that standard. This is in stark contrast to the Department of Education’s
position that institutions must apply a preponderance of the evidence standard to comply with
Title IX. Similarly, although the regulations require campus policies to define “consent,” that
definition is not prescribed. California became the first state to enact legislation prescribing
the definition of consent, requiring “affirmative consent” and explicitly stating that “silence
does not mean consent.”42 New York Governor Andrew Cuomo shortly thereafter directed the
State University of New York system to adopt a similar standard.43
The confidentiality and reporting requirements of Title IX and the Clery Act implicate
speech. The amendments and regulation emphasize maintaining the victim’s confidentiality,
which imposes restrictions on what a school is permitted to say about incidents of sexual
misconduct. For example, timely warnings now must withhold “the names and other identifying
information of victims.” The regulations explain the need to evaluate incidents on a case-by­
case basis and to balance the safety of the campus community while minimizing the risk of
releasing information that might identify the victim, such as the location of the crime or ethnicity
of the victim where a pattern is noted. Similarly, in maintaining confidentiality while providing
accommodations, the regulations “strongly encourage institutions to inform victims before
sharing personally identifiable information” that may be necessary in providing such an
accommodation. In addition, consistent with FERPA requirements, college and university
policies generally require that all hearing participants keep the proceedings confidential, barring
discussion by any participant of any testimony or evidence introduced at a conduct hearing or as
part of an investigation. However, the results (including any initial or interim decision), which
must include the sanctions imposed and “the rationale for the result and the sanctions”44 must be
provided to the parties and schools may not require nondisclosure agreements that would prevent
discussion or dissemination of these results.45
41
34 C.F.R. § 668, Subpart D, Appendix A.
S.B. 967, Student Safety” Sexual Assault (Cal. 2014), https://leginfo.legislature.ca.gov
/faces/billNavClient.xhtml?bill_id=201320140SB967.
43
SUNY system adopts “yes means yes” sexual consent policy (Dec. 2, 2014), http://www.syracuse.com/news/index.ssf/2014/12/yes_means_yes_sexual_violence_state_university_of_new_york.
html ). 44
34 C.F.R. § 668.46(k) 45
See DOE Significant Guidance, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011) at 14 (“[T]he FERPA
limitations on redisclosure of information do not apply to information that postsecondary institutions are required to disclose under the Clery Act. Accordingly, postsecondary institutions may not require a complainant to abide by a nondisclosure agreement, in writing or otherwise, that would prevent the redisclosure of this information.”). 42
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Under Title IX, all responsible employees46 must report incidents of sexual violence to
either the Title IX Coordinator or to another appropriate school designee. Exceptions are made
only for school counselors and pastors,47 although the OCR recently expanded a college or
university’s ability to expand the protection of confidentiality to “social workers, psychologists,
health center employees, or any other person with a professional license requiring
confidentiality, or who is supervised by such a person” who must still report the incident, but
may withhold the victim’s identifying information. In addition, the OCR recognized that schools
may want to designate non-professional counselors or advocates, such as employees at oncampus sexual assault centers and women’s centers, as confidential sources who may report
incidents without the victim’s identifying information.48
Faculty are not among the confidential designees and are therefore required to report
incidents of sexual violence. However, an OCR staff attorney responding to a specific inquiry
indicated that faculty who learned of an incident via a required class writing assignment “would
not be required to report the information to the Title IX coordinator or other appropriate school
designee.”49 However, the staff attorney advised that the faculty member should provide to that
student information on Title IX, including how to file a Title IX complaint with the school,
options for reporting to campus or local law enforcement and any available on and off-campus
resources for survivors of sexual violence.
In addition to legislation, regulations, and agency guidance, the Department of Education
has been escalating enforcement, imposing fines, pursuing public settlement agreements, and in
one instance threatening the revocation of funding. The White House has underscored and
supplemented these efforts through a high-level task force, The White House Task Force to
Protect Students from Sexual Assault.
Congress is also paying close attention to campus sexual assault, holding a number of
hearings to address the issue and considering newly proposed bills with bipartisan support, such
as the Campus Accountability and Safety Act (CASA),50 Hold Accountable and Lend
Transparency (HALT),51 and Survivor Outreach and Support Campus Act (SOS).52 These bills
46
A “responsible employee” is defined by the OCR to include “any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.” DOE Significant Guidance, Questions and Answers on Title IX and
Sexual Violence (Apr. 29, 2014) at 15, citing the Revised Sexual Harassment Guidance: Harassment of Students by
Employees, Other Students, or Third Parties (January 19, 2001).
47
These exceptions are consistent with the Clery Act exemptions for “professional counselors” and “pastoral
counselors.” The Clery Act otherwise requires Campus Security Authorities (campus police or security personnel, any individual to whom criminal offenses should be reported and any official with ‘significant responsibility for student and campus activities”) to report good faith reports of Clery Act crimes to the campus designated official. While CSA reports are encouraged to include identifying information of the victim for law enforcement purposes and to avoid double-counting of crimes, no personally identifying information will be disclosed in the anonymous
statistical reports. See DOE, The Handbook for Campus Safety and Security Reporting (2011) at 81. 48
DOE Significant Guidance, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014) at 22-23.
49
E-mail from Rachel Gettler, Staff Attorney, OCR to Janet P. Judge, President Sports Law Associates LLC (Feb. 18, 2015) (posted to NACUA listserv). 50
S.R. 2692, H.R. 5354 (113th Cong.) (2014). 51
H.R. 5269 (113th Cong.) (2014). 52
H.R. 5277 (113th Cong.) (2014). The National Association of College and University Attorneys
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focus on increasing the penalties that can be imposed on schools, increasing transparency of
reporting by both schools and the Department, requiring mandatory climate surveys, and
enhancing support for victims. Clearly, the attention to these important issues will remain
prominent at least through 2015.
III.
Overview of First Amendment and Speech Restrictions
Despite providing in rather absolute terms that “Congress shall make no law . . .
abridging the freedom of speech,” the U.S. Supreme Court has long held that the First
Amendment’s free speech clause permits certain content-based and time-place-and-manner
restrictions on speech. We next turn to three areas particularly relevant to the public college and
university setting: permitted content-based restrictions; content restrictions in the post-secondary
education setting; and limitations on speech in instructional vs. the non-instruction settings.
A. Permitted Content-Based Restrictions
Content-based restrictions limit speech based on the viewpoint of the message or the
subject-matter of the speech. Content-neutral restrictions still regulate speech, but do so
regardless of the viewpoint or subject matter of the speech. For example, a public university’s
policy that requires all university-sponsored student groups to accept all students who wish to
join is an enforceable content-neutral regulation. This is so even if the policy required a
Christian organization to offer membership to gay and non-Christian students the organization
would otherwise exclude, as was the case in Christian Legal Society Chapter of the University of
California, Hastings College of Law v. Martinez.53 If, however, the university allowed a
Hispanic student group to exclude non-Hispanic students, but required the Christian organization
to accept anyone who wanted to join, that would be a content-based regulation.
The concern, of course, with content-based restrictions is that the Government will target
particular, unpopular messages and attempt to stifle dissent.54 As a result, the Supreme Court
applies intermediate scrutiny to content-neutral restrictions and generally applies strict scrutiny
to content-based restrictions;55 and, as one would expect with more exacting scrutiny, the Court
has frequently invalidated regulations that restrict speech based on the viewpoint of the message
or the subject matter of the speech.
In Snyder v. Albert,56 for example, the Court determined that holding the Westboro
Baptist Church liable in tort for picketing on public property near a soldier’s funeral with signs
stating that God kills American soldiers as punishment for America’s tolerance of homosexuality
53
561 U.S. 661 (2010). The Court so held even though the regulation “ha[d] an incidental effect on some speakers or messages but not others.” Id. at 696 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
54
See, e.g., Simon & Shuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (recognizing that content-based restrictions “raise[] the specter that Government may effectively drive certain ideas or viewpoints from the marketplace”). 55
See, e.g., Turner Broadcasting Sys. v. F.C.C., 512 U.S. 662 (1994).
56
562 U.S. 443, 131 S. Ct. 1207 (2011). The National Association of College and University Attorneys
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ran afoul of the First Amendment.57 In Texas v. Johnson,58 the Court invalidated a Texas law
prohibiting the desecration of the American flag. The ordinance was an impermissible contentbased restriction because the law allowed the flag to be used for other purposes, such as to
demonstrate one’s patriotism, but not to voice government dissent by burning the flag in
protest.59
Thus, in reviewing the Supreme Court’s jurisprudence, one often comes across
sentiments such as: “above all else, the First Amendment means that government has no power
to restrict expression because of its message, its ideas, its subject matter or its content.”60 But
this, of course, is a slight oversimplification. Not all content-based restrictions violate the First
Amendment. Indeed, such restrictions are generally permitted in eight narrow contexts:
1) speech that incites imminent lawless action;61
2) speech that is integral to the commission of a crime, e.g., perjury, blackmail, and
extortion;62
3) speech that triggers an automatic violent response (so-called “fighting words” or the
related “hostile audience” problem);63
4) “true threats”;64
5) obscenity;65
6) child pornography;66
7) certain types of defamatory speech;67 and
8) certain times of commercial speech (primarily false or misleading speech connected
to the sale of a service or product, or offers to engage in illegal activity).68
While such restrictions receive heightened, if not strict, scrutiny, the Supreme Court has
consistently held that restricting those categories of speech is consistent with the First
Amendment. Notably for our purposes, however, as the Snyder case makes clear, there is not a
“hate speech” exception to the First Amendment. Nor have Courts interpreted the First
Amendment to permit a “harassment exception” to free speech.69
57
The Court noted, however, that 44 states have laws restricting funeral picketing, and “[t]o the extent th[ose] laws
are content neutral, they raise very different questions from the tort verdict at issue in this case.” 562 U.S. —, 131
S. Ct. at 1218. 58
491 U.S. 397 (1989). 59
Id. at 414; see also R.A.V. v. City of St. Paul, 550 U.S. 377 (1992) (invalidating an ordinance that prohibited
specific forms of hate speech, including burning crosses, that were likely to cause anger or alarm, because the ordinance prohibited hate speech based on race, but permitted hate speech based on other factors). 60
Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972). 61
Brandenburg v. Ohio, 393 U.S. 444, 447-48 (1969).
62
Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). 63
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 64
Watts v. United States 394, U.S. 705 (1969); see also Osei v. Temple Univ., 2011 U.S. Dist. LEXIS 113431 (E.D. Pa. Sept. 30, 2011) (holding that a graduate student telling his university counselor, “[i]f I don’t get this schedule change, I am going to shoot you,” was not protected because it was a true threat). 65
Miller v. California, 413 U.S. 13, 23-24 (1973). 66
New York v. Ferber, 458 U.S. 747 (1982).
67
New York Times v. Sullivan, 376 U.S. 254 (1964). 68
Central Hudson Gas v. Public Serv. Comm’n, 447 U.S. 563 (1980).
69
See, e.g., DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). The National Association of College and University Attorneys
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B. Content Restrictions in a University Setting
Before turning to content restrictions in the college and university setting, a brief review
of content-based restrictions in grade and high schools is warranted because such cases often
serve as guidance for lower courts reviewing regulations limiting speech in the college and
university setting. Supreme Court jurisprudence addressing content restrictions in the high
school setting indicates that, although students “do not shed their constitutional rights at the
schoolhouse gate,”70 the Court has been willing to create exceptions to what would otherwise be
constitutionally protected speech. Tinker v. Des Moines Independent School District71 is
instructive. There, the Court recognized that speech that materially and substantially interferes
with the operation of the school is not protected. The Court went on to hold that wearing black
armbands in protest of the Vietnam War was not sufficiently disruptive as to bring it outside the
realm of protected speech. In Hazelwood School District v. Kuhlmeier,72 the Court recognized
that schools are not obligated to affirmatively support student expression in school-sponsored
activities if the audience might interpret the student’s expression to “bear the imprimatur” of the
school, such as in a school newspaper. Last, in Bethel School District No. 403 v. Fraser,73 the
Court created a “lewd speech exception,” because public schools are charged not only with
educating students academically, but also with delineating for students the boundaries of mature,
socially acceptable conduct. In that case, a student speech full of sexual double entendres made
at a school assembly was not constitutionally protected.
While there are only two Supreme Court cases directly addressing pure speech in the
university and college setting, that Court and the lower courts’ treatment of such speech indicates
that the general standard to restrict speech at the university level is higher than it is at the
elementary and high school level.74 In Healy v. James,75 the Court held that universities may,
consistent with the First Amendment, restrict speech if the expression would materially interfere
with the school’s pedagogical goals. In so doing, and importantly for our purposes, the Court
implied that the bar for behaviors that may substantially interfere with a collegiate environment
is higher than those that may disrupt a high school. So, high school administrators would receive
greater deference than university administrators because college students are generally of legal
majority and more mature. Applying those principles, the Court held that a college’s refusal to
recognize a campus chapter of the Students for Democratic Society, an “anti-establishment”
organization that promoted civil disobedience in higher education, was unconstitutional.
Likewise, in Papish v. Board of Curators of the University of Missouri,76 the Court in a
per curium opinion reversed the lower and appellate courts’ affirmance of the expulsion of a
70
Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969).
Id.
72
484 U.S. 260 (1988). 73
478 U.S. 675 (1986). 74
See, e.g., McCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010) (“Public university administrators are granted less leeway in regulating student speech than are public elementary or high school administrators.” (quotation omitted)). 75
408 U.S. 169 (1972). 76
410 U.S. 667 (1973). 71
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student for a political cartoon depicting a policeman raping the Statue of Liberty and the
Goddess of Justice, with the headline, “Motherfucker Acquitted.” The Court again reiterated that
“state colleges and universities are not enclaves immune from the sweep of the First
Amendment,” and that the mere dissemination of speech — no matter how offensive to good
taste — on a state university campus may not be shut off in the name of “conventions of
decency.”77 The student’s expulsion was therefore an impermissible decision based on the
content of the student’s speech.
Healy and Papish represent general institutional limits to restricting college students’
speech that is independent in nature and outside of an instructional context, though it occurs in
some type of physical or virtual campus forum. These decisions and others establish that
although colleges and universities may have less leeway than grade and high schools in
regulating student speech, colleges may limit such speech based on reasonable campus rules and
without content-based restrictions (insofar as the speech at issue did not fall into one of the areas
where content-based restrictions are permissible).
C. Instructional vs. Non-instructional Settings
While it is clear that, as a general matter, universities have less leeway in regulating
student speech than public high schools and grade schools, Hazelwood and other cases from the
non-university setting still provide guidance in the university context. Hazelwood, for example,
has proven important in framing the contours of college authority over student speech which
takes place in instructional settings.78 Indeed, courts reviewing college and university speech
routinely are making clear distinctions between instructional and non-instructional settings.
Professors can set standards in instructional settings, i.e., no sarcasm; no disrespectful postings;
no attacks on other students; professionalism at all times; no prejudicial language; no
proselytizing, etc., that might be inappropriate in non-instructional settings. For example, in
Corlett v. Oakland University Board of Trustees,79 the district court held a student submitting to
his professor an assigned daily writing journal with entries titled “Hot for Teacher,” and that
described her as “[t]all, blond, [and] stacked,” were merely “expressions of lust” that were
entitled to no First Amendment protection whatsoever.
Issues with regulating speech in the instructional setting are of course not limited to
students — professors too have claimed that some adverse action stemmed from their protected,
classroom speech. In Sheldon v. Dhillon,80 an adjunct biology professor alleged that the college
withdrew its offer of employment for her to teach the next semester in retaliation for classroom
statements she made about the role of inheritance and the biological basis for homosexuality.
While the professor’s exact comments were in dispute, the court, assuming for the purposes of
reviewing the motion to dismiss that the professor’s version of events was true, held that it could
77
Id. at 670. Four Circuits have, in fact, adopted the Hazelwood approach for the college or university setting. See Ward v.
Polite, 667 F.3d 727 (6th Cir. 2012); Hosty v. Carter, 412 F.3d 731, 735 (7th Cir. 2005) (en banc); Axson-Flynn v.
Johnson, 356 F.3d 1277, 1284-85 (10th Cir. 2004); Ala. Student Party v. Student Gov’t Ass’n, 867 F.2d 1344, 1347
(11th Cir. 1989). The First Circuit, however, has rejected applying Hazelwood in the university or college setting.
Student Gov’t Assn’n v. Bd. of Trs. of Univ. of Mass., 868 F.2d 473, 480 n.6 (1st Cir. 1989).
79
958 F. Supp. 2d 795 (E.D. Mich. 2013). 80
No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009) (unpublished). 78
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not at that early stage of the litigation determine whether the college’s actions were reasonably
related to legitimate pedagogical concerns. Last year, in Frieder v. Morehead State University,81
the Sixth Circuit questioned whether a professor “flipping the bird” to his class was
constitutionally protected speech.82
A university’s ability to control speech is not limited to the purely instructional settings,
however. In several cases, courts have also condoned institutional authority over student speech
in social media. This was so even though such speech occurred outside of a formal instructional
context. But, the speech did raise curriculum concerns, such as the application of
professionalism standards in internships and practicums.
In Yoder v. University of Louisville,83 for example, the court upheld against a First
Amendment challenge a nursing student’s expulsion for violations of the confidentiality code
and honor code because the student posted information about a patient on her MySpace page,
even though the student did not disclose the patient’s name.84 And in Synder v. Millersville
University,85 a student was removed from a student-teaching position by the high school in
which she was placed due, in part, to an online posting. As a result, the university refused to
award the student a teaching certificate for failure to complete her student-teaching requirement.
Prior to student-teaching, she was warned by the University that she was expected to adhere to
the same rules and professionalism standards as full-time teachers at placement school. The
student’s placement school prohibited teachers from “friending” students or other teachers, and
from discussing their online presence. The student disregarded this policy, discussed her
MySpace page, which showed her dressed as a pirate and holding a plastic cup with the caption
“drunken pirate,” and the student was terminated. Such postings did not raise an issue of public
concern and were therefore not protected by the First Amendment.
Last, it should be noted that many state constitutions contain free speech provisions, and
some states interpret those provisions to be more protective of speech than their First
Amendment counterpart.86 The New York Court of Appeals, for example, has held that the New
York Constitution prohibits recovery for defamation based on opinion, even after the U.S.
Supreme Court had earlier held in Milkovich v. Lorain Journal Co.,87 that opinions enjoy no
special constitutional speech protections.88 In Commonwealth v. Tate, the Pennsylvania Supreme
81
770 F.3d 428 (2014). The court ultimately did not answer this question because it was clear that the professor could not demonstrate, as he must to make out a case for First Amendment retaliation, that his gesture motivated the University’s decision to
deny him tenure. 83
526 F. App’x 537 (6th Cir. 2013) (non-precedential).
84
Similarly, in Tatro v. University of Minnesota, 816 N.W.2d 509 (Minn. 2012), the Minnesota Supreme Court upheld the University’s ability to discipline a mortuary sciences student who made various postings on Facebook
concerning the cadaver she was working on, as well as how she wanted to use a mortuary device to stab someone. For support of this approach, see Mark A. Cloutier, Note, Opening the Schoolhouse Gate: Why the Supreme Court
Should Adopt the Standard Announced in Tatro v. University of Minnesota To Permit the Regulation of Certain
Non-Curricular Student Speech in Professional Programs, 55 B.C. L. Rev. 1659 (2014). 85
2008 U.S. Dist. LEXIS 97943 (E.D. Pa. Dec. 3, 2008). 86
See Commonwealth v. Tate, 432 A.2d 1382, 1387 (Pa. 1981) (“It is well-settled that a state may provide through
its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts.”). 87
467 U.S. 1 (1990). 88
See generally Immuno, A.G. v. Moor-Jankowski, 567 N.E.2d 1270 (1991). 82
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Court relied on the Pennsylvania Constitution’s free speech provision to hold that a private
college that opened its campus to the public for an event could not apply a “standardless” permit
requirement and the commonwealth’s defiant trespass law to prevent a group from distributing
leaflets.89 Colleges and universities must therefore also be cognizant of state constitutional
speech protections.
D. First Amendment Principles Applied to Private Colleges and Universities
Under certain circumstances, First Amendment principles may apply to private colleges
and universities. For example, many private colleges and universities have university polices
and codes of conduct that adopt First Amendment principles. That is not to say that the First
Amendment applies with full force to that private school. Rather, courts often view such
university policies operating in the nature of a contract.90 So, a policy providing for free speech
and expression could be modified by an accompanying policy prohibiting harassing speech.91
Moreover, California’s “Leonard Law,” requires all nonsectarian private universities in
the state to follow the dictates of the First Amendment.92 Stanford University had a policy that
prohibited speech that “is intended to insult or stigmatize an individual or a small number of
individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or
national and ethnic origin.”93 The court enjoined Stanford from enforcing the policy because it
constituted viewpoint discrimination, and thus ran afoul of the Leonard Law.94
As the foregoing makes clear, public colleges and universities may restrict speech with
reasonable, content-neutral regulations. Content-based regulations, however, are susceptible to
First Amendment challenges. Yet there is an emerging and developing exception to this general
rule in the context of speech, even outside the instructional setting, that raises curriculum
concerns, such as the application of professionalism standards, e.g. the duty of patient
confidentiality in rendering healthcare.
IV.
Overview of academic freedom
Academic freedom is an important and widely misunderstood concept. Faculty often
have a broad view of academic freedom protections, and may believe that academic freedom
89
Commonwealth v. Tate, 432 A.2d 1382, 1391 (Pa. 1981).
See, e.g., Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir. 2007) (recognizing that “[a] student’s
relationship to his university is based in contract” and that the “relevant terms of the contractual relationship
between a student and a university typically include language found in the university’s student handbook”); Ross v. Creighton Univ., 957 F.2ed 410, 416 (7th Cir. 1992) (“It is generally held in the United States that the basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant becomes a part of the contract.” (quotation omitted)). 91
See Kelly Sarabyn, Free Speech in Private Universities, 39 J.L. & Educ. 145, 151-154 (Apr. 2010) (identifying
school policies that guarantee free speech for students yet prohibit harassing speech).
92
Cal. Educ. Code § 94637. The law, however, “does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected. Id. at § 94367(e).
93
Corry v. Leland Stanford Jr. Univ., No. 740309, at 1 (Cal. Sup. Ct. Feb. 27, 1995) (unpublished), available at
http://web.stanford.edu/~evwayne/library/corrym.html. 94
Id. at 25. 90
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applies to everything they write, say or do, whether in the classroom, at a department meeting, in
a letter to the editor or in a television or social media sound bite. Administrators may regard the
concept more narrowly and believe that it only applies to classroom speech or written
scholarship. And many in both camps believe that academic freedom is always protected by the
First Amendment. None of these assumptions is correct.
Although the Supreme Court has identified the protections of academic freedom as
significant,95 it has not declared that academic freedom is coterminous with the First
Amendment’s free speech provision. And because the First Amendment protects only
individuals whose speech is suppressed (or punished) by the government, faculty at private
colleges and universities do not enjoy First Amendment protection vis-à-vis their institution
(although they may be promised academic freedom by a faculty handbook or policy, which could
provide them with contractual protection).
The American Association of University Professors (AAUP) has issued statements
regarding academic freedom. Its 1940 Statement of Principles on Academic Freedom and
Tenure has been incorporated by numerous colleges and universities into faculty handbooks,
collective bargaining agreements, and policy documents. That Statement provides that faculty
are “entitled to full freedom in research and in the publication of the results….to freedom in the
classroom in discussing their subject, but they should be careful not to introduce into their
teaching controversial matter which has no relation to their subject. . .”96 In other words, in
order for the faculty member to be protected by academic freedom in the classroom, the speech
must be germane to the subject matter of the course.
Other AAUP Statements limit the scope of academic freedom as well. The AAUP
Statement on Professional Ethics97 expects that professors will “accept the obligation to exercise
critical self-discipline and judgment in using, extending, and transmitting knowledge. They
practice intellectual honesty. . . . [They] demonstrate respect for students as individuals and
adhere to their proper roles as intellectual guides and counselors. . . . They avoid any
exploitation, harassment, or discriminatory treatment of students . . . Professors do not
discriminate against or harass colleagues. . . . [They] accept their share of faculty responsibilities
for the governance of their institution.” Thus, academic freedom blends rights with
responsibilities.
Students enjoy academic freedom as well. The AAUP Statement on Rights and Freedoms
of Students states that students have the right to “take reasoned exception to the data or views
offered in any course.” They are also protected against “improper evaluation” and the disclosure
of confidential personal information.98 In addition, student free speech rights have been
protected in a wide range of lawsuits, including one in which a court agreed with the student
plaintiff that a policy against sexual harassment was unconstitutionally vague and thus violated
95
Sweezy v. New Hampshire, 354 U.S. 234 (1957). AAUP Statement of Principles on Academic Freedom and Tenure, available at http://www.aaup.org/report/1940­
statement-principles-academic-freedom-and-tenure. 97
http://www.aaup.org/report/statement-professional-ethics. 98
AAUP, Joint Statement on Rights and Freedoms of Students, Policy Documents and Reports (10th ed., 2006), 273­
279.
96
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the student’s free speech rights.99 California’s “Leonard Law,” discussed above,100 gives
students at private institutions free speech rights similar to those enjoyed by students at public
universities.
Colleges and universities have struggled to recognize student’s free speech rights while at
the same time attempting to enforce their nondiscrimination and anti-harassment policies.
Several public colleges and universities have seen their hate speech codes struck by courts as
unconstitutionally overbroad.101 Another college found that its attempt to bar an anti-gay group
from distributing leaflets on its public campus violated the U.S. Constitution, despite its defense
that the content of the leaflets promoted views that violated the college’s nondiscrimination
policy.102
The widespread belief by faculty (and many administrators) that academic freedom is
broadly protective of virtually all faculty speech and the considerable protections for students in
the form of academic freedom, the First Amendment (at public institutions), and the
nondiscrimination protections reviewed above make for potential clashes—in the classroom, on
social media, in campus gatherings, and in student organizations. Combined with what appears
to be a growing trend toward incivility on campus, the battle lines appear to be forming.
V.
Civility and academic freedom
A recent survey of chief academic officers found that faculty civility is declining. The
respondents believed that faculty behaved with civility toward their students, but showed a
decreasing amount of civility toward their colleagues and, particularly toward administrators.103
In that survey, the majority of the respondents stated that they believed civility was an important
criterion to consider in making hiring, promotion and tenure decisions.104 The AAUP has taken
the position that collegiality (a close cousin, if not an identical twin, of civility) should not be
used as a separate criterion for making faculty personnel decisions because it would “chill”
academic freedom and free speech.105 Irrespective of the debate, the courts have roundly
approved the use of collegiality as a criterion for faculty personnel decisions.106
99
DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). See text accompanying note 92. 101
See, for example, Doe v. University of Michigan, 721 F. Supp. 852 (E.D. MIch. 1989); UWM Post, Inc. v. Board
of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991); Bair v. Shippensburg
University, 280 F. Supp. 2d 357 (M.D. Pa. 2003). 102
Lela and McCartney v. Board of Trustees of Community College District No. 516, 2015 U.S. Dist. LEXIS 7146
(N.D. Ill. 1/21/15). 103
Scott Jaschik, “2015 Survey of Chief Academic Officers,” Inside HigherEd, January 22, 2015, available at https://www.insidehighered.com/news/survey/2015-survey-chief-academic-officers. 104
Id. 105
AAUP, On Collegiality as a Criterion for Faculty Evaluation, 1999, available at http://www.aaup.org/report/collegiality-criterion-faculty-evaluation.
106
See, for example, Mayberry v. Dees, 663 F.2d 502 (4th Cir. 1981); Stein v. Kent State University Board of
Trustees, 994 F. Supp. 898 (N.D. Ohio 1998); Bresnick v. Manhattanville College, 864 F. Supp. 327 (S.D.N.Y. 1994); University of Baltimore v. Peri Iz, 716 A.2d 1107 (Md. Ct. Spec. App. 1998); Ward v. Midwestern State University, 217 F. App’x 325 (5th Cir. 2007); Sawicki v. Morgan State University, 2005 U.S. Dist. LEXIS 41174, aff’d, 170 F. App’x 271 (4th Cir. March 1, 2006). For analyses of this issue, see Mary Ann Connell & Frederick G. Savage, The Role of Collegiality in Higher Education Tenure, Promotion, and Termination Decisions, 27 J. COLL. &
100
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Faculty who have been disciplined or dismissed for refusing to comply with policies or
for classroom incivility have generally been unsuccessful in stating academic freedom claims.
For example, an economics instructor at a public college was dismissed for using profane
language in the classroom.107 The court held that there was no First Amendment protection for
such speech, citing Connick v. Myers, 108 because the profane speech was not a matter of public
concern. Furthermore, said the court, the speech was not protected by academic freedom
because it was not germane to the subject matter of the course and “had no educational
function.”109 More recently, a federal appellate court rejected a professor’s claim that he was
denied tenure in retaliation for extending his third finger, colloquially known as “flipping the
bird,” to his students.110 The professor alleged that this “one-fingered salute,” as the court
characterized it, was protected by the First Amendment. Although the court was skeptical that
this gesture was a form of protected speech, it found that the faculty member’s poor student
ratings and disorganization fully justified his tenure denial, and thus it was unnecessary to
determine whether such a gesture was protected by the First Amendment.
But in Hardy v. Jefferson Community College,111 the court sided with a professor whose
contract was not renewed after a student complained about the words the professor used in a
class exercise about how language marginalizes minorities. The court determined that the class
exercise was germane to the course, a class on interpersonal communication, and that the topic
was a matter of public concern. With respect to a faculty member’s academic freedom “right” to
reject department or school policy on curriculum, the use of student course evaluations, or other
curricular matters, the court have sided with the institution. For example, in Edwards v.
California University of Pennsylvania,112 a professor challenged his discipline for failing to
include required content in his class syllabus. The court ruled for the university, saying that the
professor had no first amendment right to control the content of his class, and that the
institution’s academic freedom right trumped that of the professor.
As noted in Section IV above, the AAUP recognizes that faculty are expected to treat
their students and their colleagues with respect, to refrain from harassing them, and to exercise
“critical self discipline” in their dealings with colleagues and students.113 The AAUP’s 1940
Statement reminds us that the faculty’s “special position in the community imposes special
obligations. As scholars and educational officers, they should remember that the public may
judge their profession and their institution by their utterances. Hence they should at all times be
accurate, should exercise appropriate restraint, should show respect for the opinions of others,
and should make every effort to indicate that they are not speaking for the institution.”114
U. L. 833 (2001) and Mary Ann Connell, Kerry Brian Melear & Frederick G. Savage, Collegiality in Higher Education Employment Decisions: The Evolving Law. 37 J. COLL. & U. L. 529 (2011). 107
Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986). 108
461 U.S. 138 (1983). 109
Martin v. Parrish, 805 F.2d at 584 n. 2.
110
Frieder v. Morehead State University, 770 F.3d 428 (6th Cir. 2014). 111
260 F.3d 671 (6th Cir. 2001). 112
156 F.3d 488 (3d Cir. 1998). For another example of the “academic freedom” of the institution, rather than the professor, see Johnson-Kurek v. Abu-Absi, 423 F.3d 590 (6th Cir. 2005).
113
AAUP Statement on Professional Ethics, supra, note 97.
114
1940 Statement of Principles on Academic Freedom and Tenure, supra, note 96. The National Association of College and University Attorneys
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A 2006 decision by the U.S. Supreme Court has reduced even further the public college
faculty member’s free speech rights. In Garcetti v. Ceballos,115 a 5-4 ruling, the majority
determined that faculty speech that is part of their employment responsibilities is not protected
by the First Amendment. The Court explained that a public employee engaging in work-related
speech was not speaking as a private citizen (whose speech would be protected), but as a
representative of the public employer. Although the dissent raised the concern that this ruling
would impair the right of scholars and teachers to First Amendment protections, the majority did
not address that issue.
Lower federal courts initially followed Garcetti closely, and ruled against faculty who
claimed that discipline, dismissal or the denial of a salary increase violated their First
Amendment rights. In Hong v. Grant,116 a case brought against the University of California at
Irvine, a tenured professor of chemical engineering alleged that university administrators had
violated his First Amendment free speech rights when he was denied a merit salary increase
because of his criticism of hiring decisions and his negative votes on certain faculty personnel
decisions. In fact, it was a faculty committee in Hong’s department that had recommended that
he be denied the salary increase after reviewing his research record and his self-assessment that
his research performance that year had been “minimal.” The court ruled that Hong’s critical
statements and negative votes were part of his professional responsibilities as a professor, and
thus, under Garcetti, were not protected by the first amendment. Echoing the words of Garcetti,
the court ruled that the university “is entitled to unfettered discretion when it restricts statements
an employee makes on the job and according to his professional responsibilities.”117
In Gorum v. Sessoms,118 a case brought against the president of Delaware State
University, a tenured professor of communications was terminated for violating the institution’s
policy against changing student grades. A faculty panel found that Professor Gorum had
unlawfully changed student grades given by other professors 48 times, either raising them from
failures to passing grades, or changing withdrawals or failures to passing grades, even for
students who did not attend class and who did no work for the class. Although the faculty
hearing panel found that these violations had occurred and were a serious transgression, the
panel recommended probation rather than dismissal. The president and Board of Trustees
dismissed Gorum. Gorum sued, alleging that his dismissal was in retaliation for three
statements that he had made: two criticizing the president, and one in defense of a football
player who had been suspended for carrying a gun on campus. Again, the court read Garcetti
narrowly and ruled that these statements were made in Gorum’s capacity as a professor, so they
were not protected by the First Amendment.
In a third post-Garcetti case, Renken v. Gregory,119 an engineering faculty member sued
his dean and other academic administrators when the University of Wisconsin at Milwaukee
returned an NSF grant to the funding agency because of a dispute between Professor Renken and
115
547 U.S. 410 (2006). 516 F. Supp. 2d 1158 (C.D. Cal. 2007), aff’d, 2010 U.S. App. LEXIS 23504 (9th Cir. Nov. 12, 2010). 117
Id. at 1165. 118
561 F.3d 179 (3d Cir. 2009). 119
541 F.3d 769 (7th Cir. 2008). 116
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the dean over how matching funds would be spent. Renken had refused to sign a document that
described how the matching funds would be used because he disagreed with the dean’s
interpretation of federal regulations. Renken accused the dean of violating federal regulations
and contacted various administrators and faculty committees about the dispute, attacking the
dean’s integrity. He rejected the graduate dean’s attempt to mediate the dispute and resolve the
differences between Renken and the engineering dean. Renken’s lawsuit alleged that the
university violated his First Amendment rights by reducing his pay and terminating the grant
because of his criticism of the dean’s requirements for the use of the matching funds. Despite
the fact that Renken argued that his faculty job did not require him to apply for or obtain grants,
the court ruled that obtaining a grant was a method of fulfilling Renken’s teaching and research
obligations, and thus any statements that he made in connection with the grant were job-related
and not protected by the first amendment.
More recently, however, the lower federal courts have either refused to apply Garcetti to
academic speech, or have carved out an exception. For example, in Adams v. University of North
Carolina at Wilmington,120 the United States Court of Appeals for the Fourth Circuit ruled that a
professor’s publications were unrelated to his teaching or other university duties, and thus
Garcetti did not apply. The professor had alleged that he was denied promotion to full professor
because his colleagues did not like the subject matter of his writings or the views expressed
therein. In Demers v. Austin,121 another Court of Appeals ruled that a professor’s proposal to
restructure a school of communications, and a proposed book criticizing his university, were a
form of scholarship and thus exempt from Garcetti. The professor had alleged that he received
lower performance evaluations as retaliation for his writings; the university asserted that his
evaluations were lower because he had not published in refereed journals and had disregarded
university rules about meeting his classes. The court found that, although the writings at issue
were part of the professor’s official duties, they were “academic speech” and thus exempt from
the Garcetti doctrine. The court said:
We conclude that Garcetti does not — indeed, consistent with the First
Amendment, cannot — apply to teaching and academic writing that are performed
"pursuant to the official duties" of a teacher and professor. We hold that academic
employee speech not covered by Garcetti is protected under the First
Amendment, using the analysis established in Pickering.122
These differences in the application of Garcetti with respect to 1) whether it applies at all to
“academic speech” (the “exception” argument) or 2) whether classroom speech and scholarly
writing are exempt, but all other speech, such as that related to governance is covered by
Garcetti, suggest that much more litigation will be needed to clarify the application and
boundaries of this doctrine.
Students have been nearly as active as faculty in testing the limits of civility, academic
freedom, and academic free speech. The U.S. Supreme Court has ruled that K-12 public schools
may limit student speech for appropriate pedagogical reasons,123 and federal courts have applied
120
640 F.3d 550 (4th Cir. 2011). 746 F.3d 402 (9th Cir. 2014). 122
Id. at *19-20. 123
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). 121
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the reasoning of this case to some student academic freedom/free speech claims. For example, in
Axson-Flynn v. Johnson, 124 a student claimed that her religion would not permit her to recite
certain words in a play that was required for her theater class. She was given the choice of
saying the words or leaving the program. In reviewing her claims of constitutional deprivations,
a federal appellate court relied on Hazelwood to analyze whether the university’s actions
constituted legitimate pedagogical concerns or were pretextual. Noting that other students had
been given exemptions for religious reasons, the court reversed the trial court’s award of
summary judgment and remanded the case for trial.
The widespread use of social media has heightened attention to civility and academic
freedom among students. In several cases, students have been disciplined for allegedly violating
either the institution’s code of student conduct or the code of ethics of a professional program by
the content of their social media postings. In Tatro v. University of Minnesota,125 a student
enrolled in a mortuary science program posted statements on her Facebook page that appeared to
be both threatening to fellow students and instructors, and disrespectful of the donated cadaver to
which she had been assigned. The university determined that the student had violated mortuary
science program rules that required respect for cadavers and discretion and confidentiality in
communications concerning the program. It imposed discipline on the student, and she sued,
claiming that her free speech rights had been violated. The state supreme court ruled that the
program rules were narrowly tailored and directly related to professional standards of mortuary
science, thus rejecting the student’s claims.
Another student ran afoul of the requirements of her professional program when she
posted a picture of herself on a MySpace page purportedly drinking a beer, with the caption
“drunken pirate.” The student was assigned to student teaching in a high school at the time, and
had encouraged her students to contact her through her MySpace page, despite the fact that her
supervisor had told her not to do that. She was dismissed from her student teaching assignment,
and was not able to complete the requirements for her teaching certification, although she did
graduate with a bachelor’s degree. She sued her university, claiming free speech violations.126
The court applied traditional First Amendment free speech doctrine127 to the speech at issue and
determined that the speech was not related to a matter of public concern, and thus did not deserve
First Amendment protection.
A third student was dismissed from a nursing program at the University of Louisville
after she posted on her Facebook page what the program faculty believed were unprofessional
remarks about witnessing a live birth.128 The university claimed that the student had violated the
honor code and course confidentiality requirements, and dismissed her from the program. She
sued, claiming violation of her free speech and due process rights. The court concluded that the
university had legal and ethical obligations to ensure patient confidentiality and privacy, and that
the requirements forbidding students from “blogging” about confidential matters were neither
overbroad nor vague.
124
356 F.3d 1277 (10th Cir. 2004). This case is discussed in Section VIII of this paper.
816 N.W. 2d 509 (Minn. 2012). 126
Snyder v. Millersville University, 2008 U.S. Dist. LEXIS 97943 (E.D. Pa. Dec. 3, 2008). 127
Connick v. Myers, supra, note 108. 128
Yoder v. Univ. of Louisville, 526 Fed. Appx. 537 (6th Cir. 2013).
125
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Institutions may run afoul of the First Amendment in an attempt to enforce civility and
non-harassment codes. In College Republicans at San Francisco State v. Reed,129 the
university’s code of student conduct, among other provisions, stated: “Students are expected to
be good citizens and to engage in responsible behaviors that reflect well upon their university, to
be civil to one another and to others in the campus community, and contribute positively to
student and university life.”130 Other portions of the code of conduct forbid intimidation or
harassment. A group of students held a demonstration that involved papers written in the Arabic
language, including the word for “Allah,” and placing these papers on the ground and stepping
on them, in disrespect for the Muslim religion. Another student filed a complaint, citing the code
of conduct’s requirement that students behave in a civil manner. Although a disciplinary panel
found that the students involved in the demonstration had not violated the policy, the students
sued the university, claiming that the policy was overbroad and vague, and thus violated the First
Amendment. The court found that the civility requirement was unconstitutionally overbroad, but
that the terms “intimidation” and “harassment” were not overbroad because they were linked to
code of conduct provisions intended to promote health and safety.
It appears that institutions that tie civility requirements to the professional ethics or
standards of academic programs, and that articulate these requirements as course or program
requirements, may have a reasonable chance of avoiding free speech or academic freedom
violations when students challenge discipline or dismissal for uncivil behavior. However, in cocurricular activities, especially on public campuses, it will be difficult for the institution to
prohibit or punish “uncivil” conduct unless it is threatening or dangerous.
VI.
Harassment and Academic Freedom
For the same reasons that Titles VI and IX recognize race, color, national origin, and sex
as protected characteristics, they can be fruitful topics for classroom discussion and academic
exploration. Yet conflicts between principles of free speech, academic freedom, and antiharassment policies do occur, raising difficult questions for colleges and universities. These
conflicts can arise in different ways: faculty comments during classroom discussions; faculty
harassment of other faculty members; and student-peer harassment. We address each in turn.
A. Harassment in the Classroom by Faculty Members
As an initial matter, this discussion assumes that Garcetti did not displace existing First
Amendment case law as to a public college instructor’s in-class speech. The Garcetti majority
specifically recognized it was not deciding “whether the analysis we conduct today would apply
in the same manner to a case involving speech related to scholarship or teaching.”131 So,
although early post-Garcetti court opinions rejected First Amendment claims related to faculty
job-related speech, more recently, courts that have addressed the issue specific to scholarship and
129
523 F. Supp. 2d 1005 (N.D. Cal. 2007). Id. at 1009. 131
547 U.S. at 425 130
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teaching have held that Garcetti did not displace earlier-established law as to the First
Amendment protections for that speech.132
The Supreme Court has not yet determined the protection given to a college professor’s
classroom speech. Appellate and trial courts, in analyzing First Amendment retaliation claims in
the context of speech in the classroom setting, apply the two-step test from Pickering v. Board of
Education,133 which involved a school punishing a high school teacher for writing a letter to the
editor that criticized the local board of education. Under that test, it is the plaintiff’s burden to
establish: (1) that he or she was disciplined for speech that was directed toward an issue of public
concern; and (2) that his or her interest in exercising that speech outweighed the College’s
interest in regulating his speech.134 In applying the first step of this analysis, courts rely on
Connick v. Myers, which instructs the court to, among other things, consider the public versus
private nature of the speech and whether the speech relates to “any matter of political, social, or
other concern to the community.”135
Specific to classroom speech, whether or not the speech was germane to course
curriculum is pivotal in determining whether the speech is protected by the First Amendment.
The professor who “flipped the bird” to his class, for example, attempted to garner First
Amendment protection for that rather expressive conduct by arguing that he extended his middle
finger to his students during a lesson that involved a painter who used birds as symbols of sexual
sin.136
A comparison to two Sixth Circuit opinions, Hardy v. Jefferson County Community
College137 and Bonnell v. Lorenzo,138 illustrates this principle. In Hardy, a long-time adjunct
professor of communications courses brought suit against the college and college administrators
for their refusal to renew his teaching contract as retaliation for classroom speech. During one
classroom session, he presented his standard lecture on language and social constructivism,
where students examined how language is used to marginalize minorities and other oppressed
groups in society. Some of the words the professor elicited were “girl,” “lady,” “faggot,”
“nigger,” and “bitch.” An African-American student objected to the use of the words “nigger,”
and “bitch” in the classroom, lodging complaints with the professor, his superiors, and a local
civil rights activist, who threatened to affect the schools already declining enrollment. The
professor was never again asked to teach at the college.
In applying the two-step Pickering test, the Court found that the professor’s lecture
related to matters of “overwhelming public concern — race, gender, and power conflicts in our
132
See discussion accompanying notes 117-123. See also Sheldon v. Dhillon, No. C-08-3438 RMW (N.D. Cal. Nov. 25, 2009) (unpublished) (“In light of the Garcetti Court’s reluctance to apply its public-employee speech rule in the context of academic instruction, the court must apply the existing framework for analyzing teacher’s instructional speech.”). 133
391 U.S. 563 (1968). 134
Id. at 568. 135
Id. at 146. 136
Frieder v. Morehead State Univ., 770 F.3d 428 (6th Cir. 2014). The court found this rationale questionable, but ultimately decided the First Amendment question in the university’s favor on other grounds. 137
260 F.3d 679 (6th Cir. 2001). 138
241 F.3d 800 (6th Cir. 2000). The National Association of College and University Attorneys
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society.”139 The speech was therefore germane to the course content. And in balancing the
professor’s right to speak to a matter of public concern with that of the school in avoiding
disruption caused by such speech, the court held that the professor’s right to free speech and
academic freedom outweighed the college’s interest in limiting the speech.
Bonnell represents the other end of the spectrum. There, an English professor elicited
three complaints from students for three separate incidents, alleging that the professor repeatedly
and gratuitously used obscene language, such as “fuck,” “pussy,” and “cunt,” without reference
to assigned readings. One complaint also stated that the professor repeatedly made fun of and
laughed at students who expressed discomfort. The college repeatedly warned the professor that
classroom speech is exempted from the schools sexual harassment policy if it is not germane to
the course materials, yet the professor persisted, and the school eventually suspended him
without pay.140 The court recognized that “a debate rages concerning the degree to which speech
that is racially harassing is protected,”141 but went on to hold that the professor’s classroom
speech was not protected by the First Amendment. According to the court, the professor “may
have a constitutional right to use words such as ‘pussy,’ ‘cunt,’ and ‘fuck,’ but he does not have
a constitutional right to use them in a classroom setting where they are not germane to the
subject matter, in contravention of the College’s sexual harassment policy.”142
Courts in other jurisdictions are in accord with the Hardy-Bonnell division. In Hayut v.
State University of New York,143 for example, a student brought a sexual harassment suit against
a University, a political science professor, and school administrators where the professor
repeatedly called her “Monica,” in reference to her purported resemblance to Monica Lewinsky,
asked her how her weekend with Bill Clinton was, and told the student, “[b]e quiet, Monica. I
will give you a cigar later.”144 The professor did not argue that his comments “complemented
classroom curriculum or had any other legitimate pedagogical purpose.”145 The statements were
thus not protected by the First Amendment.
Nonetheless, colleges and universities must take care to ensure that they have clear
harassment policies where those policies restrict classroom speech in addition to physical
conduct. In several instances, courts have struck down the use of anti-harassment policies to
punish professors for classroom speech because the policies in question were impermissibly
vague and so did not give professors sufficient notice of what speech was prohibited.
In Cohen v. San Bernardino Valley College,146 a student filed a complaint in response to
an English professor’s repeated focus on topics of a sexual nature, his use of profanities and
vulgarities, and his comments that the student believed were directed intentionally at her and
other female students in a humiliating and harassing manner. The school’s sexual harassment
policy prohibited conduct that has the “effect of unreasonably interfering with an individual’s
139
Hardy, 260 F.3d at 679. The professor also made copies of one student’s complaint and, after redacting the student’s name, distributed the complaint to students in his classes and faculty members. 141
241 F.3d at 810.
142
Id. at 820. 143
352 F.3d 733 (2d Cir. 2003). 144
Id. at 738-39. 145
Id. at 745. 146
92 F.3d 968 (9th Cir. 1996). 140
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academic performance or creating an intimidating, hostile, or offensive learning environment.”147
The college determined that the professor violated the policy because his sexually-oriented
teaching methods created a hostile learning environment. The Ninth Circuit, however, held that
the policy as applied to the professor’s speech was unconstitutionally vague. The Court reasoned
that because the professor’s speech did not fall within the “core region of sexual harassment as
defined by the policy,” it led to college officials applying the policy’s “nebulous outer reaches”
to the professor’s speech, resulting in a “legalistic ambush.” Other courts have reached similar
conclusions in evaluating whether an anti-harassment policy as applied to punish a professor’s
classroom speech is unconstitutionally vague.148
B. Peer Harassment
The OCR has recognized that “Title IX is intended to protect students from sex
discrimination, not to regulate the content of speech.”149 The OCR, however, has not carved out
speech from its interpretation of Title IX, and includes prohibitions on “verbal conduct”. This
sets the stage for potential conflicts with principles of free speech.
1. Faculty
In the context of faculty-to-faculty harassment, there is a wide-range of speech, especially
if mixed with conduct, that falls outside the protection of the First Amendment and could thus
potentially be punished under Titles VI and IX. As an initial matter, we must return to the theme
that the First Amendment does not apply to private schools, while Titles VI and IX apply to any
educational institution, public or private, that receives government money, directly or indirectly.
So faculty-faculty harassment at private institutions would not be protected by the First
Amendment (although faculty handbooks or policies could come into play); and if that
harassment relates to one of the Title VI and Title IX protected characteristics, it could be
actionable.
Even if the harassment occurs at a public university or college, there is a wide-range of
speech that would not be protected by the First Amendment and could be actionable either under
Titles VI and IX. Private conversations between faculty members would likely not be covered
by the First Amendment. If the speech is made in public, there are still the 8 categories of
speech that are subject to content-based restrictions. Moreover, speech by public employees that
does not involve a matter of public concern is not entitled to First Amendment protections.150
And here too, Garcetti may play a role. As some courts have held, faculty from public
universities and colleges lack First Amendment rights when speaking in their official capacities
147
Id. at 972.
See Booher v. Bd. of Regents, N. Ky. Univ., 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 22, 1998) (holding that
although a male professor made multiple statements to a female student with sexual overtones, the university’s antiharassment policy failed to provide adequate notice of prohibited conduct and delegated enforcement of the policy
without adequate guidance for that enforcement); Dambrot v. Cent. Mich. Univ., 55 F. 3d 1177 (6th Cir. 1995)
(affirming the district court’s finding that the University’s harassment policy violated the First Amendment because
it was overbroad and vague); Silva v. Univ. of N.H., 888 F. Supp. 2d 293, 313 (D.N.H. 1994) (holding that the
university’s sexual harassment policy was overbroad as applied to professor’s classroom speech).
149
Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62
Fed. Reg. 12,034, 12,045 (1997).
150
See Connick, 461 U.S. at 146.
148
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(although not in the classroom and not in the their scholarship).151 Under that reading of
Garcetti, if a faculty member engaged in verbal and physical harassing conduct while acting in
his or her official capacity, the speech elements of that harassment would garner no First
Amendment protection whatsoever. And Titles VI and IX would apply with full force. These are
just some of the examples where the First Amendment would not impede the application of
Titles VI and IX.
2. Students
A great deal of attention has been paid of late as to how colleges and universities respond
to sexual assault. Two documentaries were recently released: The Hunting Ground, which takes
a searing look at rape on college campuses and schools’ responses, and It Happened Here, which
follows five students at three schools and examines the student survivor movement. Also,
prominent author Jon Kraukauer released a non-fiction book in April titled, Missoula: Rape and
the Justice System in a College Town, which features accounts of sexual assaults and the
University of Montana’s response. While much of this increased attention has focused on sexual
assault, the prevention and punishment of sexual harassment has also come into play. Indeed, in
May of 2014, the DOE released the names of 55 colleges and universities that the OCR was
investigating for possible Title IX issues stemming from the schools’ handling of sexual assault
and sexual harassment cases.152 As of January 7, 2015, the number of post-secondary
institutions that the OCR was investigating for Title IX issues had climbed to 94.153
Title IX and student codes of conduct regulate students’ behavior differently than
standards applied to faculty, requiring colleges and universities to consider additional factors.
Recall that under Title IX, schools are required to take immediate action to eliminate the
harassment, prevent its recurrence, and address its effects, even if the victim does not want to file
a complaint.154 This includes, among other things, requiring school employees to report the
incident(s) to the school Title IX coordinator or other appropriate school officials.155 Moreover,
under the Clery Act,156 as amended by the Violence Against Women Reauthorization Act of
2013, schools are required to compile and report statistics for incidents of domestic violence,
dating violence, sexual assault, and stalking.157 Such incidents may include speech that would
151
See, e.g., Hong v. Grant, discussed in section V of this paper.
U.S. Department of Education, U.S. Department of Education Releases List of Higher Education Institutions with
Open Title IX Sexual Violence Investigations (May 1, 2014), http://www.ed.gov/news/press-releases/us-department­
education-releases-list-higher-education-institutions-open-title-ix-sexual-violence-investigations. 153
A list of those schools is available at: http://www.capitalnewyork.com/sites/default/files/2015.01.07%20List
%20of%2094%20postsecondary%20institutions%20that%20have%20pending%20Title%20IX%20sexual%20violen
ce%20investigations.pdf. 154
DOE Significant Guidance, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), http://www.whitehouse.gov/
sites/default/files/dear_colleague_sexual_violence.pdf.
155
Id. Hence, a school employee should make every effort to ensure, before a student reveals information that he or
she may want to keep confidential, that the employee has an affirmative obligation to report the incident along with
the name of the alleged perpetrator. Id.
156
The Jeanne Clery Disclosure of Campus Security and Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) 157
DOE Significant Guidance, Dear Colleague Letter: Implementation of Changes to the Clery Act made by the Violence Against Women Reauthorization Act of 2013 (July 14, 2014),
http://www.ifap.ed.gov/dpcletters/GEN1413.html. 152
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cause a reasonable person to suffer emotional distress.158 University policies and codes of
conduct also play an important role here. Such policies order the life of the university and the
relationship between administrators, students, and faculty. Importantly for our purposes, these
policies specify students’ rights, identify prohibited conduct — including speech — and identify
the offenses that warrant sanction, including expulsion.
Colleges and universities have responded to heightened concerns about sexual assault and
harassment on college campuses by revising and strengthening their student codes of conduct.
But university policies and codes of conduct have become the front line of the battle between
free speech claims and anti-harassment efforts. Harvard University’s 2014 revisions to their
code of conduct, for example, were designed to ensure a safe and non-discriminatory educational
environment and to meet the legal requirements of Title IX.159 Following guidance from the
OCR, the policy prohibited sexual harassment, defined as: “unwelcome conduct of a sexual
nature, including unwelcome sexual advances, requests for sexual favors, and other verbal,
nonverbal, graphic, or physical conduct of a sexual nature when” in the form of quid pro quo
harassment or hostile environment harassment.160 In response, 28 members of the Harvard Law
School Faculty, including legal luminaries such as Alan Dershowitz and Charles Ogletree,
published an Op-Ed piece in the Boston Globe voicing their opposition.161 Among the
substantive, procedural and governance challenges those faculty members levied was that the
revised policies adopted a definition of sexual harassment that goes significantly beyond Title
IX.
The Foundation for Individual Rights in Education (“FIRE”), an organization whose
stated mission is to defend and sustain individual rights at America’s colleges and universities,
reviews university policies that regulate speech to determine their compliance with the principles
of free speech and recently updated its Guide to Due Process and Fair Procedure on Campus,
addressing speech concerns.162 In their 2015 review of 437 public and private schools reviewed
by FIRE, the organization determined that 241 schools maintain at least one policy that “both
clearly and substantially restricts freedom of speech, or that bars public access to speech-related
policies.”163 Indeed, as next discussed, several schools have had their anti-harassment policies
challenged successfully in court on the basis that the policies impermissibly restrict speech.
C. First Amendment limitations
While harassing speech can be abhorrent, “[t]here is no categorical ‘harassment
exception’ to the First Amendment’s free speech clause.”164 Accordingly, “[h]arassing or
discriminatory speech, although evil and offensive, may be used to communicate ideas or
158
See 20 U.S.C. § 1092(f); see also 34 C.F.R. § 100.3(b).
Harvard University: Sexual and Gender-Based Harassment Policy (Oct. 15, 2014), http://diversity.harvard.edu
/files/diversity/files/harvard_sexual_harassment_policy.pdf. 160
Id.
161
Rethink Harvard’s sexual harassment policy, Boston Globe, Oct. 15, 2014 162
FIRE, Guide to Due Process and Fair Procedure on Campus (2015), http://d28htnjz2elwuj.cloudfront.net/wp­
content/uploads/2013/12/07013435/FIRE-2015-Guide-to-Due-Process-3.pdf. 163
FIRE, Spotlight on Speech Codes 2015: The State of Fee Speech on Our Nation’s Campuses, http://www.thefire.org/spotlight-speech-codes-2015/. 164
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001). 159
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emotions that nevertheless implicated First Amendment protections.”165 Indeed, “[t]he majority
of speech-restrictive policies at public colleges challenged in federal court have been struck
down as unconstitutional.”166 These cases illustrate three common First Amendment flaws with
anti-harassment codes that regulate speech, according to the courts: (1) the policies are often
vague, and so do not provide sufficient notice as to what speech is prohibited, thus serving to
chill speech; (2) the policies are often overbroad, in that they operate to prohibit constitutionallyprotected speech; and (3) the policies often focus on the subjective reaction of the listener,
commonly referred to as the “heckler’s veto,” something the Supreme Court has disfavored in
regulations that restrict speech.
DeJohn v. Temple University,167 is a good example of such a case. At the time, the
university’s policy on sexual harassment provided that:
all forms of sexual harassment are prohibited, including . . . expressive, visual, or
physical contact of a gender-motivated nature, when . . . (c) such conduct has the
purpose or effect of unreasonably interfering with an individual’s work,
educational performance, or status; or (d) such conduct has the purpose or effect
of creating an intimidating, hostile, or offensive environment.168
DeJohn, a graduate student of Military and American History, claimed that the policy
was facially overbroad because he felt inhibited in expressing his opinions in class
concerning women in combat and women in the military, thus chilling his speech. He
therefore sought to permanently enjoin the University from enforcing the policy.
The Third Circuit held that the policy was facially unconstitutional. The court first
determined that the overbreadth doctrine applied with full force to college campuses: “[b]ecause
overbroad harassment policies can suppress or even chill core protected speech, and are
susceptible to selective application amounting to content-based viewpoint discrimination, the
overbreadth doctrine may be invoked in student free speech cases.”169 The court was careful to
recognize, moreover, that in the college setting, administrators are given less leeway to regulate
student speech than are public elementary or high school administrators. Applying these
principles, the court determined that the sexual harassment policy impermissibly focused on the
motive of the speaker and it prohibited “core political and religious speech, such as gender
politics and sexual morality.”170 In so holding, the Court noted that “unless harassment is
qualified with a standard akin to a severe or pervasive requirement, a harassment policy may
suppress core protected speech.”171
McCauley v. University of the Virgin Islands,172 another Third Circuit case, is another
instructive example. After a student alleged that she had been raped, McCauley, who was a
165
Id.
Kelley Sarabyn, Free Speech at Private Universities, 39 J.L. & Educ. 145, 154 n.55 (Apr. 2010).
167
537 F.3d 301 (3d Cir. 2008). 168
Id. at 305. 169
Id. at 314. 170
Id. at 37-18 (citation omitted). 171
Id. at 320. 172
618 F.3d 232 (3d Cir. 2010). 166
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friend of the accused, confronted the accuser in person and called her on the phone. The
University found McCauley guilty of violating the Student Code of Conduct for retaliating
against another student for reporting a sexual assault. McCauley, in response, leveled a First
Amendment challenge to three provisions in the university’s student code of conduct:
Paragraph B: Prohibiting “Verbal Assault, Lewd, Indecent or Obscene Conduct or
Expressions on University Owned or Controlled Property or at University Sponsored or
Supervised Functions.”173
Paragraph H: Defining “[c]onduct which causes emotional distress” to include “conduct
which results in physical manifestations, significant restraints on normal behavior or
conduct and/or which compels the victim to seek assistance in dealing with distress.”174
Paragraph R: Defining “misbehavior” to include “[d]isplaying in [certain areas of
campus] any unauthorized or obscene, offensive or obstructive sign.”175
The Third Circuit held that:
Paragraph B was constitutional because lewd, indecent, or obscene speech is not
protected by the First Amendment and the paragraph could be reasonably construed to
prohibit only such unprotected speech.
Paragraph H was overbroad and could not be enforced because it could “be used to
punish any protected speech, without forewarning, based on the subjective reaction of the
listener.”
Paragraph R’s prohibition of “offensive” and “unauthorized” speech was overbroad and
could not be enforced.176
Similarly, in Doe v. University of Michigan,177 the court found an anti-discrimination
policy the Board of Regents passed in an attempt to curb a rising tide of racial intolerance and
harassment on campus to be overbroad. The Policy prohibited students from “‘stigmatizing or
victimizing’ individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation,
creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status.”178
A student in the University’s social work program ran afoul of this policy when he, among other
things, expressed his belief that “homosexuality was a disease and that he intended to develop a
counseling plan for changing gay clients to straight.”179 Holding that the policy was overbroad
on its face and as applied to the student and impermissibly vague, the court permanently enjoined
173
Id. at 252. Id. at 250. 175
Id. at 247-48. 176
Id. at 251. 177
721 F. Supp. 852 (E.D. Mich. 1989). 178
Id. at 853. 179
Id. at 865. 174
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the parts of the policy that restricted speech. Other courts reviewing anti-harassment policies of
public colleges and universities have reached similar results.180
To complicate matters further for colleges and universities, the debate continues as to
what extent Title IX may regulate pure speech, as opposed to mixed speech or physical conduct.
On May 9, 2013, the U.S. Department of Justice and the OCR announced the joint resolution of
their long-running investigation into the University of Montana’s handling of allegations of
sexual assault and harassment.181 While not legally binding on other colleges and universities,
the documents were to serve as a nationwide “blueprint.”182 In that letter, the OCR and DOJ
proposed that schools should define sexual harassment as “any unwelcome conduct of a sexual
nature,” including “verbal conduct.”183 The AUUP responded to the DOJ and OCR stating that it
was concerned that the letter may pose a threat to academic freedom in the classroom. FIRE
attacked the definition as violating First Amendment free speech rights.184 The DOJ and OCR
responded to both letters stating that OCR’s regulations do not proscribe protected speech. In
particular, the Agencies stated: “[t]o create a hostile environment, something beyond the mere
expression of views, words, symbols or thoughts that some person finds offensive must exist.
Rather, the conduct or speech must also deny or limit a student’s ability to participate in or
benefit from an educational program.”185
VII.
Faculty Academic Freedom Beyond the Classroom
Print and electronic media recount numerous examples of faculty—often untenured,
adjunct faculty—who have lost their jobs, or who have been threatened with job loss, because of
statements they have made both in and outside of the classroom. The omnipresence of social
media and students’ seizing upon statements with which they disagree and broadcasting them
180
See Lopez v. Candaele, No. CV 09-995 (C.D. Cal. 2009) (unpublished) (holding that college’s sexual harassment
policy was overbroad); Coll. Republicans at S.F. State Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007)
(enjoining university’s civility policy because it was overbroad); Blair v. Shippensburg Univ., 280 F. Supp. 2d 357
(M.D. Pa. 2003) (enjoining enforcement of university harassment policy); The UWM Post v. Bd. of Regents of the
Univ. Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991) (holding that university’s sexual harassment policy was
overbroad).
181
DOJ & OCR, University of Montana Letter of Findings (May 9, 2013), http://www.justice.gov
/sites/default/files/opa/legacy/2013/05/09/um-ltr-findings.pdf.; see also Josh Whitlock, Meredith Green, and
Amanda Abshire, NACUA Notes: The Impact of the May 2013 Montana “Blueprint” on the Sexual HarassmentRelated Obligations of Colleges and Universities (June 14, 2013), http://www.nacua.org/nacualert
/notes/Montana.pdf.
182
As noted by the United States Commission on Civil Rights, the OCR has backed away from characterizing the
agreement as a national model. Letter of United States Commission on Civil Rights to Members of Congress (Feb.
26, 2015), http://www.nacua.org/documents/USCommissionCivilRightsLtrOCR.pdf. Catherine E. Lhamon, DOE
Assistant Secretary for Civil Rights, stated in a letter to FIRE “that the Agreement in the Montana case represents
the resolution of that particular case and not OCR or DOJ policy.” Letter from Lhamon to FIRE (Nov. 14, 2013)
http://www.thefire.org/letter-from-department-of-education-office-for-civil-rights-assistant-secretary-catherine-e­
lhamon-to-fire/.
183
Harvard University adopted a near-verbatim version of the definition in its 2014 policy-revision that elicited
public objection from Law School Faculty Members.
184
FIRE, Department of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes,
http://www.thefire.org/cases/departments-of-education-and-justice-national-requirement-for-unconstitutional-speech­
codes/.
185
DOJ and OCR, Response to Letters of Concern Regarding “Blueprint” (May 29, 2013), http://www.thefire.org
/department-of-educations-office-for-civil-rights-response-to-letters-of-concern-regarding-blueprint/.
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around the globe have made these statements fodder for discipline and sometimes for refusal to
hire, nonreappointment, or dismissal.186
A recent and highly visible symbol of the clash between academic freedom on the one
hand, and civility and support for institutional nondiscrimination policies on the other, is the
conflict involving Steven Salaita. Salaita, an American-born son of Palestinian parents and
formerly a professor of English at Virginia Tech, engaged in a series of Twitter comments that
were harshly critical of Israel after its military actions in Gaza in the summer of 2014. He was
initially offered a position as a professor of American Indian Studies at the University of Illinois,
and had agreed to leave his tenured position at Virginia Tech. Salaita claims that he was
effectively hired by the University. The University states that only the Board of Trustees can
effectively hire a professor.187 Although the parties dispute whether Salaita was actually hired by
the University of Illinois and then dismissed, or whether an offer to hire was withdrawn because
of Salaita’s Twitter comments that some found very offensive, it does appear clear that his public
comments created a storm of controversy and persuaded the University not to seek approval for
his appointment by the trustees. Salaita is suing the University and various “John Does” who he
claims persuaded the University of Illinois to retract his job offer.188
Institutions are not immune from criticism for hiring or retaining faculty who express
unpopular views, and this problem is not a new one. For example, in Levin v. Harleston,189
Levin, a philosophy professor at a CUNY institution, published his views on the relative
intelligence levels of various racial groups. He became controversial, and students protested his
presence on campus. The administration created “shadow sections” for the professor’s required
philosophy course so that students could avoid taking the class with him, and appointed a faculty
committee to review whether Professor Levin’s views were protected by academic freedom. The
committee, which did not give Professor Levin an opportunity to address it, concluded that
Professor Levin’s writings were “unprofessional and inappropriate conduct that harms the
educational process of the college,” and that the shadow sections were justified.190
Levin sued, claiming that the shadow sections and the committee’s procedures violated
his free speech and procedural due process rights. The trial and appellate courts agreed, noting
that no student had ever complained that Levin’s in-class speech involved racial discrimination,
and that the committee’s operation had a chilling effect on Levin’s free speech rights. The court
also concluded that any discipline imposed by the college would be a free speech violation.
186
See Robin Wilson. “Adjuncts Fight Back Over Academic Freedom.” Chron. Higher Ed. 10/3/2008, available
at http://chronicle.com/article/Adjuncts-Fight-Back-Over/22742/. See also Peter Schmidt, “Casual References to
Violence Bring Serious Consequences for College Instructors.” Chron. Higher Ed., 7/31/11, available at
http://chronicle.com/article/Casual-References-to-Violence/128422/.
187
“2014 Influence List: Twitter Casualty.” Chron. Higher Educ., Dec. 5, 2014, available at
http://chronicle.com/article/Twitter-Casualty-Steven-G/150853/.
188
Colleen Flaherty. “Going After the Donors.” Inside HigherEd, Jan. 30, 2015, available at
https://www.insidehighered.com/news/2015/01/30/steven-salaitas-long-anticipated-lawsuit-against-u-illinois­
includes-twist.
189
966 F.2d 895 (2d Cir. 1992).
190
770 F. Supp. At 914.
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If the speech at issue can be interpreted as related to the faculty member’s job
responsibilities at a public institution, then Garcetti, may apply and the speech may be
unprotected.191 If, however, the speech is unrelated to the faculty member’s job responsibilities,
then the Pickering192 test would apply, and, in order for the speech to be protected, a court would
need to determine whether the speech addressed a matter of public concern. Courts have denied
free speech protections to disputes between warring factions of faculty,193 or bickering
individuals,194 ruling that the subject matter of these disputes were personal, and not a matter of
concern to the public.
Under certain circumstances, college administrators may be forced to decide whether to
support the academic freedom of those whose speech clashes with the institution’s
nondiscrimination policies. A good illustration of this conflict is Rodriguez v. Maricopa County
Community College District.195 A professor of mathematics used a community college’s e-mail
system and employee list to send several controversial e-mail messages to all of the district’s
faculty and staff. The professor’s messages were interpreted by many recipients as hostile to
people of Latino heritage. When the college president disclaimed any endorsement of the
professor’s views, but refused to discipline him on the grounds of academic freedom, several
Latino employees sued, claiming that the messages constituted workplace harassment. A federal
appellate court upheld the president’s decision, characterizing the messages as protected speech,
not harassment, and rejected the plaintiffs’ claims. The court made it clear that it was deferring
to the institution’s “decisions to err on the side of academic freedom.”
Garcetti does not apply to faculty who work at private institutions. Faculty at private
colleges and universities, although they lack First Amendment free speech protections, may
actually enjoy more protection than their peers at public institutions if academic freedom and
free speech protections are incorporated into faculty handbooks or other institutional policies.
Should a faculty member be disciplined for an alleged exercise of academic freedom, a breach of
contract claim would be available to the professor of a private institution. Rather than using First
Amendment free speech jurisprudence to analyze such a claim, a reviewing court would be
required to parse the language of the academic freedom protections written into the contract
(assuming that the court first finds that the handbook or policy has contractual force).
VIII.
Religious objections to assignments or requirements
First amendment considerations also arise in the context of religious objections to
assignments or class requirements. Students have made religious objections to school
assignments, arguing that certain assignments compel speech that is contrary to their religious
views or, pointing to the Free Exercise Clause in the First Amendment, that a school assignment
impedes their ability to practice their religion. Professors too have sued public schools, asserting
that the First Amendment protects their in-class religious speech.
191
See the discussion of Garcetti in Section V. Pickering v. Board of Education, 391 U.S. 563 (1968).
193
Colburn v. Trustees of Indiana University, 973 F.2d 581 (7th Cir. 1992). 194
Dorsett v. Board of Trustees for State Colleges and Universities, 940 F.2d 121 (5th Cir. 1991). 195
605 F.3d 703 (9th Cir. 2010). 192
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Such cases are fact intensive, but two general principles may be gleaned. Relying on
Hazelwood, U.S. Courts of Appeals have held that public colleges and universities may limit
student speech in “school-sponsored activities that are reasonably related to legitimate
pedagogical concerns.”196 A school, however, may not use a pedagogical goal as a pretext to
punish a student’s or professor’s religious speech.
Keeton v. Anderson-Wiley197 illustrates how legitimate pedagogical concerns can override
a student’s religious-based objections to course requirements. Keeton was a master’s degree
student enrolled in a counselor education program at a public university. She described herself
as Christian “who is committed to the truth of the Bible,” including what she believes are its
“teachings on human nature, the purpose and meaning of life, and ethical standards that govern
human conduct.”198 Keeton had strong views against homosexuality. She told a classmate that
she intended to counsel any gay client that his behavior was morally wrong, that she would try to
change the client’s behavior, and that if she were unsuccessful in doing so, she would refer him
to someone practicing “conversion therapy.” School officials, after becoming aware such
statements, determined that Keeton intended to violate several provisions of the American
Counseling Association’s (“ACA”) Code of Ethics, which the school was required to teach for
its counseling program to be accredited. So, before Keeton could participate in the program’s
clinical practicum, the school asked Keeton to participate in a remediation program addressing
deficiencies in her ability to be a “multiculturally competent counselor, particularly with regard
to working with gay, lesbian, bisexual, transgender, and queer/questioning (GLBTQ)
populations.”199 In response, Keeton sued certain school officials, arguing that requiring her to
complete a remediation plan violated her First Amendment free speech and free exercise rights.
The Eleventh Circuit disagreed. The court determined that the school was not
discriminating against Keeton based on her views on homosexuality. The remediation plan was
viewpoint neutral because it was designed to teach Keeton how to effectively counsel GLBTQ
clients in accordance with the ACA Code of Ethics. Moreover, the school had a legitimate
pedagogical concern in teaching students to comply with the ACA Code of Ethics, which the
school must adopt and follow to offer an accredited program, “and the entire mission of [the
school’s] counseling program is to produce ethical and effective counselors in accordance with
the professional requirements of the ACA.”200
Importantly, however, a school expressing legitimate educational goals cannot
automatically defeat religious objections to course requirements. The policies underlying such
196
Ward v. Polite, 667 F.3d 727, 733 (6th Cir. 2012) (quoting Hazelwood, 484 U.S. at 273). 664 F.3d 865 (11th Cir. 2011). 198
Id. at 868. 199
Id. at 867. 200
Id. at 876. Keeton’s “compelled speech” and free exercise claims fared no better. The school was not compelling Keeton to profess a belief contrary to her personal beliefs. Instead, it was “compelling her to comply
with the ACA Code of Ethics, which requires those who wish to be counselors to separate their personal beliefs from their work.” Id. 878. Similarly, even if the remediation plan had an incidental effect of burdening a particular religious practice of Keeton’s, the school’s curricular requirements were neutral and generally applicable, and thus
did not violate her right to free exercise. See also Yacovelli v. Moeser, 324 F. Supp. 2d 760 (M.D.N.C. 2004) (holding that the University of North Carolina’s assigning an academic work about the Qur’an, with
accommodations for those with religious objections, did not inhibit students’ free exercise of religion). 197
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pedagogical concern must be applied in an even-handed manner. If they are not, it raises
concerns that the policy is a pretext for punishing certain religious viewpoints.
Ward v. Polite,201 for example, arose out of similar factual circumstances as Keeton, yet
the court reached a different result, holding that there were sufficient facts in record to support
the inference that the policies were being applied as a pretext to punish the plaintiff for her
religious views. In Ward, as in Keeton, the plaintiff was enrolled in a graduate-level counselingdegree program. Ward was willing to counsel gay and lesbian clients, but her religious views
prevented her from “affirming” a client’s same-sex relationship. During her practicum, she had
successfully counseled two clients. When the school asked Ward to counsel a gay client, Ward
asked her faculty supervisor to refer the client to another student or to permit her to begin
counseling the client yet refer the client to another counselor if the session turned to relationship
issues. The school determined that Ward had violated two provisions of the ACA and, after
Ward again asked that she be allowed to refer gay and lesbian clients seeking relationship advice
to another counselor, expelled Ward from the counseling program.
The court reversed the trial court’s award of summary judgment to the university. In the
court’s view of the ACA’s Code of Ethics, the Code did not prohibit values-based referrals, so a
reasonable juror could find that the school’s proffered reason was a mere pretext to punishing
Ward’s religious views. Moreover, although the school argued that it had a “blanket rule” that
practicum students could not refer any clients, the court found that a jury could find that this too
was an ad hoc rationale for viewpoint discrimination because the school could not point to any
written policy that barred such referrals. Because significant facts were in dispute, the court
ruled that a trial was necessary.
The court contrasted this case with Keeton — which reached the opposite result — to
illustrate the “vexing issues that occasionally arise in enforcing anti-discrimination policies
through school curriculum.”202 Keeton was violating the ACA Code of Ethics by seeking to
impose her values on a client, “a form of conduct the university is free to prohibit as part of its
curriculum.”203 Ward, however, did not plan to impose her values on others. She merely sought
to refer some clients in some settings, something the ACA apparently did not prohibit.
Moreover, there was no evidence in Keeton that the school applied the prohibition on imposing a
counselor’s values on the client in anything but an even-handed manner. In Ward, however, the
code of ethics, counseling norms, and the school’s own practices seem to permit referrals —
exactly the reason that Ward was punished. Taken together, Keeton and Ward demonstrate that
“even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment’s
free-speech and free-exercise protections.”204
Like Ward, the plaintiff in Axson-Flynn v. Johnson205 was able to proffer some evidence
that the school was applying a policy as a pretext for punishing her for her religious views, and
in that case too the court sided with the student. Axson-Flynn was enrolled in the University of
201
667 F.3d 727 (6th Cir. 2012).
Id. at 741. 203
Id.
204
Id.
205
356 F.3d 1277 (10th Cir. 2004).
202
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Utah’s Actor Training Program. She said that her Mormon faith prohibited her from saying the
word “Fuck” or to take the Lord’s name in vain. So, if a role called for her to say those words,
she requested that she be able to change or omit the language that was offensive to her. After
initially accommodating Axson-Flynn, program administrators stated that she could either use
the offensive language as a part required or find another acting program. Axson-Flynn left the
program and brought suit, arguing that the school was attempting to compel her to use language
contrary to her religious views, in violation of her free-speech and free-exercise rights. The
University argued that requiring students to perform scripts that they may find offensive
advances the school’s pedagogical interests because: “(1) it teaches students how to step outside
their own values and character by forcing them to assume a very foreign character and to recite
offensive dialogue; (2) it teaches students to preserve the integrity of the author’s work; and (3) it
measures true acting skills to be able convincingly to portray an offensive part.”206
The court, although acknowledging that it does not second-guess the pedagogical wisdom
or efficacy of an educator’s goal’s, stated that it “may override an educator’s judgment where the
proffered goal or methodology was a sham pretext for an impermissible ulterior motive.”207 The
court then determined that Axson-Flynn provided sufficient evidence of pretext for her claims to
survive summary judgment. The record indicated that certain administrators harbored antiMormon sentiment. Specifically, the court reasoned that “the program’s insistence that AxsonFlynn speak with other ‘good Mormon girls,’ and that she could ‘still be a good Mormon’ and
say those words certainly raises the concern that hostility to her faith rather than a pedagogical
interest in her growth as an actress was at stake in [the school’s] behavior in this case.”208
Moreover, other students were granted religious accommodations, such as a Jewish student who
was permitted to miss a class workshop on Yom Kippur.
Axson-Flynn may represent the “high-water mark” in allowing students to object to
course requirements on religious grounds. And it seems likely that the result would have been
different in the absence of statements by administrators that supported an inference that they
harbored anti-Mormon sentiment. This is especially so considering both that the court
recognized that it should not second guess the pedagogical goals of school and found that
“[r]equiring an acting student, in the context of a classroom exercise, to speak the words of a
script as written is no different than requiring that a law or history student argue a position with
which he disagrees.”209
Head v. Board of Trustees of the California State University210 supports this reasoning.
There, the district court recognized that learning the premises of a course and how to apply them
“does not necessarily include believing in them.”211 In that case, the court dismissed a student’s
complaint alleging that a professor required him to espouse liberal views that ran counter to his
political and Christian beliefs. The professor told the student that students in the class, “Social,
Philosophical [and] Multicultural Foundations of Secondary Education,” would be graded on
206
Id. at 1291. Id. at 1293. 208
Id. at 1293. 209
Id. at 1291-92.
210
2006 U.S. Dist. LEXIS 60857 (Aug. 14, 2006). 211
Id. at *19-*20. 207
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their moral views, and, according to the student, he was given a failing grade because his work
did not conform to the professor’s worldview. The court held that the complaint did not allege
any facts that would support a conclusion that the university’s speech requirements “were not
necessarily related to legitimate pedagogical concerns.”212 It was therefore within the
professor’s prerogative to require certain speech from students to “improve their understanding
of other races and culture groups so that they could better teach students in those groups.”213
Indeed, the court went so far as to say that although the student “waives the First Amendment
banner, it is only in an attempt to gag his professor’s free-speech rights.”214 The Ninth Circuit
affirmed the district court in a non-precedential opinion, determining that there was “clearly” no
violation of the student’s First Amendment rights because, as the district court held, “[l]earning
the course material in no way compromises one’s personal right to believe as he wishes.” 215
While less common, similar conflicts can arise in the context of a professor’s religious
speech. The professor in Bishop v. Aronov,216 for example, referred to his religious beliefs
during instruction time and held an optional class that discussed “Evidences of God in Human
Physiology.”217 Some students complained about the professor’s in-class comments and optional
class. In response, the school instructed the professor to stop interjecting his religious beliefs
during instruction periods and from providing optional classes delivering a “Christian
Perspective” of an academic topic.
The court recognized the “first amendment tightrope upon which the University found
itself perched.”218 Indeed, the University was attempting to avoid Establishment Clause
violations and undue pressure on students without unnecessarily restricting the academic
freedom of a faculty member. Relying on a modified Hazelwood standard, the court determined
that “educators do not offend the First Amendment by exercising editorial control over the style
and content of student [or professor] speech in school-sponsored activities so long as their
actions are reasonable related to legitimate pedagogical concerns.”219 Applying that principle to
the facts of the case, the University did not impede the professor’s First Amendment rights
because it simply said that he may not discuss his religious beliefs or opinions under the guise of
University courses. The University was not, however, trying to change the professor’s views, or
impede his ability to express those views on his own time.
Taken together, these cases demonstrate that public colleges and universities may limit or
even require student or instructor speech in school activities that are reasonably related to
legitimate pedagogical goals, even if the student or instructor objects on religious grounds. A
school must take care, however, to ensure that its policies are applied in an even-handed manner
to avoid the appearance of pretext.
212
Id. at *21. Id.
214
Id. at *2. 215
31 F. App’x 7, 8 (9th Cir. 2008).
216
926 F.2d 1066 (11th Cir. 1991). 217
Id. at 1068-69.
218
Id. at 1069. 219
Id.at 1074. 213
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IX.
Conclusions and Recommendations
In 1957, Justice Frankfurter wrote, “It is the business of a university to provide that
atmosphere which is most conducive to speculation, experiment and creation.”220 For reasons of
both legal compliance and the furtherance of their core values, colleges must also be in the
business of insisting that students, faculty and staff refrain from discrimination and harassment
on the basis of innate characteristics such as race, ethnic origin, and sex, among others. While
some may assert that these that any such limitations run counter to both academic freedom and
free speech,221 colleges and universities find themselves squarely in the middle of two core
concepts that entail some tension an potential conflicts. How should the institution proceed?
A. Develop and enforce clear standards of conduct for staff, faculty and students.
Drafting policies that reflect the institution’s core values, navigate a highly complex
regulatory terrain, are understandable to those entitled to protections or subject to sanction, and
that can be consistently and effectively implemented requires upfront investment and periodic
review. Vagueness can be fatal to policies of both public and private colleges, whether it is
pursuant to a Constitutional analysis in the former or a contractual analysis in the latter. For
public colleges, policies may not be so broad in scope that they prohibit Constitutionally
protected speech. Multi-disciplinary policy writing teams are often convened (e.g., Title IX task
forces to update policies) to ensure effectiveness and stakeholder buy-in. Legal reviews should
also be conducted with the “multidisciplinary” perspective of higher education lawyers with
knowledge of nondiscrimination law, free speech protections, and administration.
The First Amendment and academic freedom focus on speech and expressive conduct,
but neither doctrine condones or excuses violence or misconduct. Time, place and manner
regulations have been found lawful if they are applied evenhandedly and are not used to further
viewpoint discrimination. Even those views that run counter to an institution’s
nondiscrimination policies are protected by the First Amendment (or academic freedom) as long
as they are not intended to incite violence or promote unlawful conduct.
B. Identify programs with a clinical or professional component and determine whether they
entail adherence to externally established academic or behavioral standards, and make
sure that students and faculty are aware of the expectations for their conduct at the
clinical sites or as part of a professional program.
Students and faculty who are “guests” at clinical sites must adhere to the standards of the
profession and the code of conduct of the organization in which they are placed as part of the
learning experience. Academic and behavioral standards should be established prior to the
clinical placement, reviewed with students and faculty, and reviewed regularly to ensure that
they are up to date. Similarly, students enrolling in programs that will require adherence to a
ethics or licensure requirements of a profession or vocation should understand in advance what
those standards actually are, the extent to which they are flexible or inflexible, and the
consequence for noncompliance.
220
221
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957). Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791 (1992). The National Association of College and University Attorneys
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C. Train Department Heads, Faculty Administrators, Faculty Committees on Administrative
Rights, Duties, and Responsibilities.
Legally, faculty may have duties that correspond to roles as employees, supervisors,
adults working with minors, and/or recipients of funds subject to regulatory or contractual duties
or restrictions that may require them to communicate or report certain information, share or not
share certain information, and/or refrain from certain types of statements.
D. Consider using a student-faculty advisory committee when considering whether to invite
high profile and/or controversial speakers to campus. The selection process should be
institutionalized, rigorous and confidential to avoid or minimize negative publicity or a
negative public response to the individual selected. Assistance from public relations and
media staff, as well as counsel, may be necessary and helpful.
The media reports regularly on controversial speakers who reverse their decision to come
to campus because of protests, generally by students, about the viewpoints or past actions of the
speakers.222 While we are not advocating that students and/or faculty have either a vote or a veto
over the selection of speakers (although on some campuses, students vote for the commencement
speaker they wish to hear), transparency in the selection and invitation process could lead to
healthy discussion and the airing of various perspective before dissention explodes and results in
the withdrawal of the speaker.
E. Be prepared to respond promptly and confidently to instances of hate speech or
harassment on campus by developing systems and processes to engage the institution
before they are needed. When instances of speech-related incivility, discrimination or
harassment occur, ensure a campus-wide dialogue about the issues and encourage the
expression of a variety of viewpoints. These can be teachable moments and are almost
always leadership moments that can define leaders and institutions in the minds of others.
Advocates for free speech on campus have insisted that the remedy for hate speech is
more speech.223 Both public and private colleges and universities should expect their campuses
to mirror (even magnify) the diversity of opinions, beliefs, and passions in the larger U.S.
society, should expose and equip students to handle such diverse and even conflicting values and
experiences, and should have practical systems and processes in place to channel the emotion
and energy when hate speech or harassment actually occurs. Student affairs administrators who
have close working relationships with student leaders will help the institution be better prepared
to deal with the conflict that ensues and encourage dialogue rather than disruption.
222
For example, Christine Lagarde, head of the International Monetary Fund, withdrew as commencement speaker
at Smith College after some students protested her selection. See http://www.smith.edu/president/speeches­
writings/commencement2014.
223
Franklin Haimin, “The Remedy is More Speech. The American Prospect, Dec. 4, 2000, available at
http://prospect.org/article/remedy-more-speech.
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The Intersection of Title VI, Title IX, the First Amendment and Academic Freedom
June 30, 2015
In a writing class, English Professor Ima Fensive assigns students
a paper in which they must do a critical analysis of her
institution’s affirmative action policy in admissions, in which race
is one of many factors considered. In the next class period,
Professor Fensive says that the institution’s policy allows
unqualified students from underrepresented racial groups to take
the place of qualified white students. She says to the class, “It’s no
wonder that so many of you can’t write a coherent essay. It gets
worse every year.”
Several Black and Latino students in the class taped her
comments and shared them on social media and with the student
newspaper, which calls for her resignation.
Professor Snark is a tenured faculty member of accounting
in the business school of a public research university located
in a Southwestern U.S. state. Two weeks ago he used the
university's email system to send a message to all faculty
and staff. The message read:
"So this month is Hispanic Heritage Month. When will there
be a month for White people? The only immigration reform
imperative is the preservation of the White majority."
Faculty and staff objected to this message and demanded
that the university president discipline or dismiss Professor
Snark, and threatened to sue for workplace harassment and
hostile work environment if "something is not done."
A parent called the office of the Chancellor of City University
to complain that his daughter, a volleyball player, was being
punished by her coach with less playing time as a result of
her daughter reporting to the Athletic Director that the team
members were upset by their coach’s constant yelling and
name-calling, and use of terms like “lazy,” “fat,” and
“gay.” The University has a zero tolerance policy for “any
and all forms of harassment and bullying” that is expressed
in the Human Resources policies and the student handbook.
The Chancellor’s Chief of Staff has asked you, the University’s
new attorney, to “… please handle this bullying complaint.”
A video surfaced at a public university which captured
members of one of its fraternities chanting racial epithets
while traveling on a bus to a university-sponsored
retreat. The retreat was held at an exclusive beach resort
and coincided with the end of Spring Break. The complete
video also revealed that fraternity members disrespected
U.S. Veterans the following day by spitting on them while
on a parade and urinating on American flags. Although no
police reports were filed regarding the treatment of
veterans, the media has released the story based on
accounts shared by wounded veterans and their family
members.
Dr. Judge, a research assistant in a science department, commented
on-line on a story about an alleged rape, “Women drink too much and
instead of going home, they stay around and then allege being raped.”
His comment appeared as interviews of the victim of a well-publicized
rape were at the top of the news. Dr. Judge notes in his Facebook page
the name of the university for which he works. The University is
flooded with emails by women and women’s rights groups demanding
that Dr. Judge be fired. The University is steadily working on a grantsupported program to promote the hiring of women in the sciences.
There is no record of Dr. Judge having been offensive to women in the
workplace. The research professor with whom he’s been working has
created a position to hire Dr. Judge for a permanent position and the
letter of offer has already been drafted. The research professor asserts
that there is no one as qualified for the position as Dr. Judge. Based on
this incident, the Dean does not favor hiring Dr. Judge.
Professor Sincere teaches a course on client counseling that is
required for students majoring in social work. Students are
required to write a paper on issues facing either gay or
transgender teenagers. One student objects because she says
that her religion teaches that homosexuality or transgender
behavior is a sin, and that even thinking about these matters
violates her religion. She also refuses to attend the classes
during which these issues are discussed.