Harvard has been around longer than the government of the United States—140 years longer—making it the oldest continuous institution founded in the country. Harvard not only teaches American history—it has long produced educated men and women who have helped create American history. While many wonderful traditions still abound at the most famous of American universities, a new one has developed which can erode any university’s fundament, and runs counter to the school’s stated purpose. Two events this year—one involving freshmen students, the other a longtime faculty member—remind us that despite the pursuit of “Veritas,” Harvard remained in 2011 among the vanguard of the politically correct, embracing a cynical suppression of speech and academic discourse in favor of dishonestly built ideas of comfort.
A Roundup of 2011’s Student and Faculty First Amendment Case Law
FIRE’s Robert H. Jackson Legal Fellow Andrew Kloster takes a look back at the biggest cases of 2011 and examines what these decisions mean for the legal landscape on campus.
Amending ‘Christian Legal Society v. Martinez’: Protecting Expressive Association as an Independent Right in a Limited Public Forum
In this article for the ‘Texas Journal on Civil Liberties and Civil Rights’, Erica Goldberg argues that the Supreme Court’s 2010 decision in ‘Christian Legal Society v. Martinez’ fails to provide sufficient protection to freedom of association on university campuses. Erica proposes that the Court should have held that the First Amendment right to freedom of expressive association protects the ability of belief-based student organizations to make decisions about membership based on belief, but not immutable status.
FIRE’s ‘One Trick’: Protecting Civil Liberties
FIRE Director of Legal and Public Advocacy Will Creeley responds to recent criticism of FIRE’s efforts on behalf of individual rights on campus. Answering a blog entry written by Rick Olshak, Dean of Students of Illinois State University, Creeley defends FIRE’s position as a respected civil liberties advocate and provides a thorough justification for our opposition to newly proposed guidelines for adjudicating campus sexual harassment and assault cases put forth by the Department of Education’s Office for Civil Rights.
Hayden Barnes’ Victory in Federal Court, Currently on Appeal to the Eleventh Circuit, is a Major Story to Follow in 2011
In September 2010, a federal district court denied the defense of qualified immunity to former Valdosta State University (VSU) President Ronald M. Zaccari, ruling that public college administrators who knowingly violate the constitutional rights of students should be held liable for doing so. In this piece, FIRE’s Azhar Majeed writes that the case, on appeal before the Eleventh Circuit Court of Appeals, merits close observation in the coming year, as it could set a major precedent in defense of student rights on campus.
The Year of ‘Christian Legal Society v. Martinez’
In this piece, FIRE’s Erica Goldberg reviews the Supreme Court’s landmark decision in ‘CLS v. Martinez’, in which the Court ruled that a public university may require its student organizations to admit any student as a voting member or officer, regardless of whether that student openly disagrees with or is even hostile to the group’s fundamental beliefs. Goldberg argues that this unfortunate ruling holds serious consequences for freedom of association on campus.
Measuring A “Degree of Deference”: Institutional Academic Freedom In a Post-Grutter World
Academic freedom, as a constitutional right, has long suffered from a lack of consensus over its scope and application. Although academic freedom is generally conceptualized as insulating certain aspects of the academy from government intrusion, the courts are as divided as scholars on the issue of who may invoke the right, and in what circumstances.
Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights
FIRE is pleased to announce the publication of “Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators For Violating Student Speech Rights,” an article by our Associate Director of Legal and Public Advocacy Azhar Majeed, in the Cardozo Public Law, Policy and Ethics Journal. The article argues that given the clear state of the law on campus speech codes, administrators responsible for maintaining these unconstitutional policies at public universities should not be shielded by qualified immunity against personal liability for monetary damages. Furthermore, qualified immunity should not protect administrators in the most common types of applied free speech violations. Majeed expresses the hope that if responsible administrators do not enjoy qualified immunity and therefore are faced with personal liability for their actions, they will have greater incentives to uphold students’ First Amendment rights on campus, both in policy and in practice.
Prescribing Orthodoxy
Courts and commentators have failed to clearly articulate the constitutional meaning, if any, of West Virginia State Board of Education v.Barnette’s holding that “[n]o official, high or petty, can prescribe whatshall be orthodox in politics, nationalism, religion, or other matters ofopinion, or force citizens to confess by word or act their faith therein.” As one scholar put it,
Barnette’s prohibition has produced “a jurispru-dence of deception and inconsistency” that “has become renowned forits haphazard quality.
Free Speech at Private Universities
The vast majority of universities in the United States promote themselves as institutions of free speech and thought, construing censorshipas antipathetic to their search for knowledge. Their handbooks and policies declare that students and faculty have the right of free speech, butsurprisingly, most of those same colleges also have policies that explicitly restrict speech.