I. Introduction
As you can imagine there are a wide range of legal issues existing on a
college campus. For example, consider the following -
1. First Amendment - free speech - the campus as a forum for speech and the
use of student activities fees to fund speech AND Religion on Campus - the
Establishment Clause
2. Invasion of Privacy
3. Torts - Negligence - Duty to Ensure Personal Safety of Individuals,
Vicarious Liability and Agency, Provision of Alcohol to Minors, AND
Defamation
4. Access to Records - transcripts issues & privacy - release of information
to authorized individuals via the Family Educational Rights and Privacy Act
5. Funding - educational institutions which receive federal funding, in-state
tuition eligibility issues and financial aid eligibility, student loan
collection & bankruptcy
6. Employment - Due Process issue in employment decisions & decisions
affecting tenure, Discrimination, sexual Harassment, Labor Relations,
Employee Benefits
7. Student Disciplinary Proceedings - Due Process Claims
8. Discrimination against students - race, color, national origin, gender,
sexual orientation, disability
9. Intercollegiate Athletics - Title IX compliance, NCAA regulations,
Coaches' compensation &
10. Miscellaneous - Accreditation, Intellectual Property, power of Campus
Police, Research
The purpose of my presentation is to look at recent cases within the context
of free speech and harassment within a university setting. I will be
discussing cases which are considered the major framework within this subject
area. Universities have had a very difficult time writing policies which
survive judicial scrutiny. In SCU's student handbook for the law school there
are various published polices related to nondiscrimination including
definitions for discriminatory harassment and sexual harassment. There is
also a student conduct code which includes this provision which will subject
a student to disciplinary action
S publication, posting, or distribution on University property, through the
use of University resources (e.g., computers, telephone lines, e-mail
services, Internet connection), or at authorized University activities of
material that violates the law of libel, copyright, or obscenity, postal
regulations, or any other law or statute or University policy. (p66)
The handbook also includes a line item for Computing Resources. However, this
policy is not published and is available via the Academic Computing Center.
(e-mail example)
The presence of hostile and harassing speech on college & university campuses
in the United States is well documented. The resurgence of students' use of
hateful speech in the past ten years gives rise to new attempts by some
institutions to regulate the use of hostile, intimidating, and harassing
speech on campus. This attempted regulation has resulted in a collision of
students' constitutional rights to free speech on the one hand, and their
constitutional rights to equal protection under the law on the other. There
are different factors to balance in this context. First is the encroachment
upon students' civil rights, i.e., the rights of all students to fair and
equal educational environment and opportunity. Second is the possible
curtailment of civil liberties, i.e,, the rights of citizens of the United
States to exercise freedom of speech, even when that speech is demeaning to
others.
During the first part of my presentation I will discuss traditional case law
which outlines the current status of university "hate speech" regulations.
II. Case Law Analysis
Four major cases help outline the recent history and current state of the law
concerning a state's use of "hate speech" rules.
Doe v. University of Michigan (721 F. Supp. 852 (E.D. Mich. 1989) - The
University of Michigan became the first institution to see a direct court
challenge of a campus "hate speech" code. In 1987 there had been an alarming
sequence of events that prompted the Michigan House of Representatives and
the United Coalition Against Racism to push for a set of rules that would
govern the use of hostile speech on campus. First, fliers were distributed on
campus that declared "open season on blacks," and used offensive language
in
referring to African-Americans. A week later, racist jokes were heard on the
campus radio station in a apparently unrelated incident. Later, at a rally in
which these incidents were being protested, a Ku Klux Klan uniform was
displayed from a dormitory window. The University administration took action
in the form of a statement from the president expressing outrage at the
events and reaffirming the University's dedication to maintaining a racially,
ethnically, and culturally diverse campus. The following year the University
designed a policy that provided for disciplinary action against any student
found guilty of racial harassment. The proposed policy went through twelve
drafts before it went into effect in May of 1988.
The rule that originally went into effect specifically applied to areas of
study, and proscribed as punishable the following:
1. Any behavior, verbal or physical, that stigmatizes or victimizes any
individual on the basis of race, ethnicity, religion, sex, sexual
orientation, creed, national origin, ancestry, age marital status, handicap,
or Vietnam-era veteran status and that
S involves an express or implied threat to an individual's academic efforts,
employment, participation in University sponsored extra-curricular activities
or personal safety; or
S has the purpose or reasonably foreseeable effect of interfering with an
individuals' academic efforts, employment, participation in University
sponsored extracurricular activities or personal safety.
Doe, a psychology graduate student with a specialty in the field of
biopsychology, felt the new regulations would hamper his discussion of the
biological roots of individual differences in personality traits and mental
abilities. He felt that some of his theories could be perceived as sexist or
racist by some students because the theories espoused genetic and biological
factors as major contributors to individual differences. Doe brought suit
against the University seeking a preliminary injunction on the ground that
the new regulations would unduly chill constitutionally-protected
discussions. The court found the policy unconstitutionally overbroad and
vague, because the terms "stigmatize" and "victimize" are "not
self
defining," and "because these words can only be understood with reference
to
some exogenous value system." The court also took issue with the University
because it sought to prohibit "certain speech because it disagreed with ideas
or messages sought to be conveyed. The University could not proscribe speech
simply because it was found to be offensive, even gravely so, by large
numbers of people.
UWM Post, Inc. v. Board of Regents (774 F. Supp. 1163 (E.D. Wis. 1991) -
which involved the University of Wisconsin, was the second major court
challenge to a campus speech code. The University adopted a hostile speech
rule as a result of several highly-publicized racial incidents involving
fraternities. Facts.
1. The rule provided for discipline of any student involved in (nonacademic)
racist or discriminatory comments, epithets or other expressive behavior
directed at an individual, or on separate occasions at different individuals,
or for physical conduct if such comments, epithets or other expressive
behavior or physical conduct intentionally:
S Demean the race, sex, religion, color, creed disability, sexual
orientation, national origin, ancestry, or age of the individual or
individuals; and
S Create an intimidating, hostile, or demeaning environment for education,
university-related work, or other university-authorized activity.
The district court concluded that this rule was overbroad as a content based
rule that reached a substantial amount of protected speech. In addition, it
failed to meet both the "fighting words" test and the proposed balancing
test
from Chaplinsky. The rule also prohibited some speech that was spoken against
the indicated groups, but not other types of hostile speech directed at
non-protected groups. The court indicated that this created an
unconstitutional content based form of speech regulation.
R.A.V. v. City of St. Paul (112 S.Ct. 2538 1992) - The third case to question
"hate speech rules," R.A.V. v. City of St. Paul, decided in 1992, challenged
a new St. Paul city ordinance prohibiting bias-motivated disorderly conduct.
It prohibited the display of a symbol that one knows or has reason to know
"arouses anger, alarm or resentment in others on the basis of race, color,
creed, religion o r gender." R.A.V., a minor, was charged under this
ordinance after allegedly burning a cross on a black family's lawn. While the
city could have chosen to charge R.A.V. with one of several other statutory
offenses it chose to use his case to test the new ordinance. The court ruled
the government may not proscribe some fighting words and permit others, where
the distinction is based on content or viewpoint. The ordinance goes beyond
content to viewpoint discrimination, prohibiting, for example fighting words
aimed at religion, while permitting fighting words aimed at religious
opponents. Although the Court may not have provided much guidance for
institutions wishing to protect minority groups from harassment, the Court
did state very clearly that it would not tolerate restrictions based on
content.
Wisconsin v. Mitchell (113 S. Ct. 2194 1993) - The most recent case to
address "hate crime" regulation is Wisconsin v. Mitchell. Mitchell was
convicted of aggravated battery and theft, and was given an enhanced sentence
on the grounds that the defendant intentionally selected his victim by race.
The Wisconsin Supreme Court decided this case just one day after RAV and held
that the "hate crimes" statute, which provided an enhanced penalty for
criminal conduct against a victim because of the victim's race, religion,
color, disability, sexual orientation, national origin or ancestry, violated
the First Amendment. Referring to the Supreme Court decision R.A.V., the
court rejected the "hate crimes" statute as facially invalid" under
the First
Amendment on the grounds that it punished offensive thought. The United
States Supreme Court unanimously reversed the decision pointing out a
significant difference between the rationale of R.A.V. and this case. The
Court held that "Mitchell's First Amendment rights were not violated by the
application of the Wisconsin penalty enhancement provision in sentencing
him," because the statute in question was "aimed at conduct unprotected
by
the First Amendment." The statute in R.A.V., on the other hand, had been
"explicitly directed at speech." The St. Paul ordinance was directed at
punishing symbolic speech, while the Wisconsin statute was directed
specifically at punishing criminal conduct more heavily when such conduct is
racially motivated.
University rules may enhance penalties for criminal conduct committed because
of a person's race, religion, color, disability, sexual orientation, national
origin or ancestry. However, the university will still be barred from
regulating speech and symbolic conduct that fall short of "fighting words."
Although obnoxious viewpoints or "hate speech" must be tolerated, regulating
"hate conduct" may prove to be one valuable tool in the university's actions
against hate crimes on campus.
One other point worth noting is in this context is the private institutions
may be bound by constitutional principles if they have made a contractual or
de facto commitment to assume the duty to control harassment. This de facto
commitment may be as simple as allowing anyone from the general public onto
the campus to purchase event tickets or items from a bookstore. In the case
of Commonwealth v. Tate, the Supreme Court of Pennsylvania indicated that
even when the owner of private property is constitutionally obligated to
honor speech and assembly rights of others, the institution may still impose
reasonable restrictions on the mode, opportunity, and site for individual
expression and assembly to take place. This rationale is consistent with the
case law regarding speech regulation at public institutions because it does
not base speech restriction on the content of the expressions.
There is one final case I would like to mention because it is a 1996 case
decided by the 9th Circuit and it emphasizes the difficulty a university
faces in drafting a harassment policy which will withstand constitutional
scrutiny. The court in Cohen v. San Bernardino Valley College (92 F.3d 968)
enjoined the college from punishing a professor under the sexual harassment
policy. The case involved Dean Cohen, a tenured professor who had taught
English and Film Studies since 1968. For years Choen focused his lectures in
certain classes on topics of a sexual nature, discussing subjects such as
pornography, obscenity, cannibalism and consensual sex with children. During
one of his classes, he read articles he had written that were published in
Hustler and Playboy. He then directed his students to write an essay defining
pornography. One student asked for an alternative assignment, but Cohen
refused. The student complained to the chair of the English Department about
Cohens' statements and conduct, asserting that his behavior constituted
sexual harassment.
The college' s grievance committee conducted a hearing and determined that
Cohen's conduct violated the school's sexual harassment policy because his
teaching materials and classroom conduct "unreasonably interfered with an
individual's academic performance and created an intimidating, hostile, or
offensive learning environment." The college board then imposed several
disciplinary actions against Cohen. He then sued the college claiming
violations of his First 14th Amendment rights to free speech and due process.
The 9th Circuit noted that "neither the Supreme Court nor this Circuit has
determined what scope of First Amendment protection is to be given a public
college professor's classroom speech." However, the court declined to address
the issue, ruling instead that the college' sexual harassment policy was
unconstitutionally vague as applied to Cohen. The court said Cohen's speech
did not fall within the core region of sexual harassment as defined by the
Policy. Instead, officials of the college, on an entirely ad hoc basis,
applied the Policy's nebulous outer reaches to punish teaching methods that
Cohen had used for many years.
III. Cyberspace Case Law Analysis
Loving v. Boren (1997 WL 125924 W.D. Okla.) This case decided in January of
this year focuses on the issue of free speech in cyberspace in the university
setting. Unfortunately, the case was decided on primarily procedural grounds
and therefore does not provide particularly helpful guidelines for our
discussion. The plaintiff, a professor at the University of Oklahoma alleged
that the defendant, the President Boren of the University of Oklahoma
violated his rights of free speech. Here is the factual setting of the case.
Sometime prior to March 29,1996, President Boren was visited by a member of
the Oklahoma House of Representatives who was concerned that material he
considered obscene was being made available in news groups that were carried
on OU's news servers. He was concerned that OU might be violating state law
by distributing obscene material. On March 29, 1996, the president, through
his staff blocked a number of news groups from being accessed through the OU
news servers. Prior to this date users of the OU news servers had unlimited
access to all news groups available on the Internet. The University formed a
task force and almost a year later a policy was put in place.
The plaintiff sought a declaration that his constitutional rights wee
violated and an injunction that would have required OU to return to its
former policy of allowing access to all news groups via an unrestricted news
server. In order to merit an injunction, a plaintiff must demonstrate that he
will be irreparably harmed if the injunction is not granted. The professor
chose to argue on his own behalf and failed to meet this standard - he did
not present evidence that he would be harmed by the actions of the plaintiff
or that he would suffer any harm if no injunction was granted. Furthermore,
he could not show that President's Boren's actions affected him personally.
The court determined the new policy for access to news servers at OU met
constitutional standards. Under the new policy, put in place by OU in January
of 1997, OU maintains two news servers. The "A" servers allow access to
only
those news groups approved by OU, or rather those groups that have not been
disapproved. The "B" server allows access to all news servers, including
those previously blocked. Use of the "B" servers is restricted; to access
the
"B" server, a user must be over eighteen years of age, and must click on
a
box that denotes acceptance of specific terms governing the use of the "B"
server. According to the terms of use, the "B" server may only be used
for
academic and research purposes.
The court determined that the result of this policy is to allow recreational
use of Internet services on the "A" server, but to restrict the use of
certain news groups to academic and research purposes. A university is by its
nature dedicated to research and academic purposes. The limitation of OU
Internet services to research and academic purposes on the "B" server is
not
a violation of the First Amendment, in that those purposes are the very ones
for which the system was purchased.
Finally, there is another situation related to cyberspace to consider. This
case from late 1995 did not end up in the courts, but it provides an
interesting framework for examining these issues as well as the different
players via an e-mail sent from a university computer. More material about
this scenario can be found via the link to the Cornell censorship case which
is located on the class web site. The link goes to the Justice on Campus web
site which is very interesting. There is an entire page dedicated to the
Cornell case which includes items posted to newsgroups. Four male first year
students composed a now infamous list of "75 reasons why women should not
have freedom of speech." The list is revolting. The students mailed the list
to 20 of their friends and it spread like wildfire. Cornell started getting
phone calls and e-mail messages and the media picked up the story. The
Judicial Administrator eventually determined that the students did not
violate the campus code of conduct. The reasoning sounds like a technicality.
Sexual harassment, as defined by Cornell, requires conduct specifically
direct at an individual or group, or conduct that creates a hostile
environment. Since none of the original recipients of the list filed a
complaint with the Judicial Administration and since the students only
distributed the list to their friends, their behavior did not create a
hostile environment according to the Cornell administration. Furthermore, the
students did not misuse Cornell's computer resources either, because the
University does not have a hate speech code. Nevertheless, a list of e-mail
etiquette published by Cornell Information Technologies, advises students not
to send anything electronically that you wouldn't want to see on page 1 of
the New York Times. Here's one more interesting item. The Judicial
Administrator commented that as for the individuals who threatened the
student authors or the University in response to the e-mail, it was
recommended they reconsider their actions. Such threats violate the campus
code more clearly than any of the actions of the four freshmen. This same
administrator was subject to a hoax. A fake e-mail was sent out from her
office on Thanksgiving Day.
These cases and especially the facts of the Cornell scenario illustrate the
issues a university faces in creating and administering policies designed to
foster free speech while preventing harassment. No university wants to
implement a policy which will foster litigation and build a test case.
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