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.

Swearing an Oath to Kindness

At the outset of the 2011-12 academic year, Harvard College attempted to institute a new tradition when Dean of Freshmen Thomas Dingman pressured the class of 2015 to sign a pledge placing kindness on par with academic achievement. Former Dean of Harvard College Harry Lewis broke the news and posted the pledge on his blog. The oath envisions Harvard’s commencement exercises as a morality play, reading in full:

At Commencement, the Dean of Harvard College announces to the President, Fellows, and Overseers that “each degree candidate stands ready to advance knowledge, to promote understanding, and to serve society.” That message serves as a kind of moral compass for the education Harvard College imparts. In the classroom, in extracurricular endeavors, and in the Yard and Houses, students are expected to act with integrity, respect, and industry, and to sustain a community characterized by inclusiveness and civility.

As we begin at Harvard, we commit to upholding the values of the College and to making the entryway and Yard a place where all can thrive and where the exercise of kindness holds a place on a par with intellectual attainment.

Dingman enjoined each freshman to sign the pledge and to affix his or her name onto it. The signed document would then be displayed near dormitory entrances, and every person entering would see who had signed and who had not, being informed about who had committed “to upholding the values of the college,” and who had not.

Under public pressure, Dingman partly relented, agreeing not to display the signatures on the pledge; but the pledge remains, a constant exposition of Harvard College’s moral priorities, promulgating its fundamental belief that “the exercise of kindness holds a place on a par with intellectual attainment.”

The pledge was the first of its kind in Harvard’s 375 years; the American Revolution, the Civil War, the war against fascism, and even the fanaticism of McCarthyism had failed to inspire Harvard to institute such a coercive, campus-wide oath (although being a communist and a professor at Harvard in the 1950s would lead to individual infringements on freedom of conscience). Such pledges to values that have not even been studied or evaluated by fresh undergraduates remain odious on their face, as they discourage free inquiry and imply a blind acceptance of orthodoxy through trust in one’s moral superiors. A refusal to pledge even to what one already believes becomes a proclamation of principle: we find truth—be it religious, political, or moral—through the free exercise of thought, not by acquiescence to external, chiseled maxims.

The Freshman Pledge was the first of its kind at Harvard, but we can see its roots in Harvard’s recent history, when the tradition of prioritizing institutional notions of kindness over academic inquiry commenced. Let us begin around that time when Harvard’s current freshmen were born.

Keeping Harvard Law School Comfortable

In 1992, a group of Harvard Law students, in the annual satirical Harvard Law Revue, mocked the scholarship of Prof. Mary Joe Frug and the Harvard Law Review. The HLR had published Frug’s partially finished, postmodern, expletive-laden work following her tragic, violent murder. In the Revue, anonymous HLR students printed a scathing parody—attributed to Mary Doe, Rigor Mortis Professor of Law—and circulated it among their colleagues, a limited audience to be sure, and one that would understand the commentary. The parody inevitably got out. Looking back in 2008 on the incident, FIRE co-founder and Chairman of the Board Harvey Silverglate argued in The Boston Phoenix that while the school had at first responded by not curtailing the offensive speech, Harvard soon acquiesced to the outcry of the understandably offended:

Professor David Kennedy pressed the school’s disciplinary Administrative Board to bring charges against the parody’s authors and the Law Review’s editors. He further recommended that the board look into whether those involved might be morally disqualified from becoming lawyers. Kennedy suggested, with apparent seriousness, that the piece posed a threat to women’s physical safety and well-being, writing to the Board:

Many women who received this [parody] anonymously in their student box experienced the document’s delivery as a direct threat of personal violence — murder of women is held out as trivial and quite palpably possible.

Nonetheless, the parody’s authors became lawyers and none were punished—not because the parody was deemed appropriate or benign, but because no harassment rule yet existed under which to punish the parody’s writers. Harvard Law acted swiftly to close the loophole, instituting a new, broad sexual harassment policy that prohibited the creation of an “offensive environment,” at the ready to subject future satirists to sanction. Parody became harassment and endangerment; the significant cultural and literary uses of satire were ignored amid concerns over taste, morality, and comfort.

Ten years later, concerns over harassment again enabled the quest for a comfortable environment to take precedence over academic pursuits. What unfolded in the spring of 2002 was a saga of constant offense, as expressions of insensitivity, good-faith reaction, and shameful over-reaction piled upon each other to bring the campus to a virtual standstill. It started during the tense run-up to exams, when first-year law student Kiwi Camara used the word “nig” as shorthand in his publicly posted course outline. A black student registered an official complaint, and in response another first-year, Matthias Scholl, emailed her anonymously and poked, “I have actually began [sic] using the ‘nigger’ word more often than before the incident.” This email, too, became public, and Scholl apologized to his 80-person section during Visiting Professor Bernard Harcourt’s criminal law class.

Accompanying Scholl during his apology was Professor Charles Nesson, who proposed holding a “mock-trial” with Scholl as the defendant and Nesson his lawyer. As Nesson put it, he wanted “to make the alleged tort into something we use to learn about torts and learn about ourselves and actually do a mock process.” Nesson’s pedagogic suggestion, however, led to a “firestorm of criticism” and new accusations of racial insensitivity. In a situation spiraling out of control, Nesson declined to pursue the mock trial and even opted to step down for the rest of the semester, leaving outside lecturers to teach the rest of his class.

Nesson duly apologized for his attempt to teach about and through the conflict:

I feel terrible about the emotional upset I have caused, and deeply regret that I have placed students who were already hurt once in the position of having to deal with yet another occasion for apology. I acted with good intention but without due care.

Professor Harcourt summed up the situation without a sense of irony:

There will be no mock trial. This is not a pedagogic moment. The faculty and administration have been meeting all day and are dealing with the situation …. We want to make sure learning continues and that we address this situation properly.

There was to be no teaching in response to the incident at Harvard Law, in order that learning could continue.

In another class, soon after Kiwi Camarra’s initial posting, Professor David Rosenberg remarked that “feminism, Marxism and the blacks have contributed nothing to torts.” Rosenberg clarified later that by “the blacks” he meant strands of scholarship like critical race theory, but it was too late. Students had complained. Rosenberg agreed to administrative demands that he abdicate part of his course to other professors and that his lectures be videotaped so that—as put by the Harvard Law Record at the time—“students who feel ‘uncomfortable’ attending will not be required to.” The Law School had become ever vigilant to the increasing fragility of its students; attendance to class, with the famed Socratic method and vigorous, at times discomfiting debate, became optional.

The controversy did not end after the summer, as those who felt gravely offended did not believe that enough had been done. The Black Law Students Association published an open letter to the community asking the administration to censure publicly Professors Rosenberg and Nesson in The Harvard Crimson and Harvard Law Bulletin and to ban both professors from teaching first-year law students in the future.

The administration did not further punish the professors but agreed to consider other demands, including the institution of a speech code and the implementation of a new three-hour seminar, “Managing Difficult Conversations,” which would encourage students to speak more sensitively about gender and race. Accordingly, the Law School formed a “committee on healthy diversity” to consider a code that would ban “harassing, offensive language” from the classroom.

A new speech code was never voted on or implemented. The administration seemed to agree with Professor Philip Heymann’s claim at a meeting about it that “making someone uncomfortable should not be prohibited,” that the fearsome discourse that won John Houseman an Oscar for The Paper Chase would not, and should not, disappear. The most exercised students graduated with valuable degrees and more pressing worries; the three-year law school cycle swiftly turned the crisis into history as only faculty members and administrators remembered the career-threatening dangers of politically incorrect speech.

And then a law student wrote an email to continue her dinner conversation with friends in 2009.

Privileging Comfort over Sincere Inquiry

In November of 2009, Harvard Law student Stephanie Grace and her friends engaged in some difficult debate over dinner. She hoped to continue the conversation via a private email clarifying her views:

I just hate leaving things where I feel I misstated my position.

I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances. The fact is, some things are genetic. African Americans tend to have darker skin. Irish people are more likely to have red hair. … This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs …. I don’t think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn’t mean to shy away from that opinion at dinner.

I also don’t think that there are no cultural differences or that cultural differences are not likely the most important sources of disparate test scores (statistically, the measurable ones like income do account for some raw differences). I would just like some scientific data to disprove the genetic position, and it is often hard given difficult to quantify cultural aspects.
…

In conclusion, I think it is bad science to disagree with a conclusion in your heart, and then try (unsuccessfully, so far at least) to find data that will confirm what you want to be true. Everyone wants someone to take 100 white infants and 100 African American ones and raise them in Disney utopia and prove once and for all that we are all equal on every dimension, or at least the really important ones like intelligence. I am merely not 100% convinced that this is the case.

Please don’t pull a Larry Summers on me. [Here, Grace was referring to the academic attacks on Harvard’s president in 2005 after he spoke about various reasons for lower “women's representation in tenured positions in science and engineering at top universities and research institutions” compared to men’s.]

Grace expressed a desire for clarity, conclusive evidence, and scientific analysis. She raised an uncomfortable issue in a thoughtful, scientifically oriented manner. And she was far from the first to consider such questions, or to suffer negative consequences for doing so. Harvard psychology professor Richard Herrnstein posthumously published a bestselling book, The Bell Curve, in 1994 which, among other things, described potential links between race and intelligence; after the publication, his coauthor, political scientist Charles Murray, became, in the words of one commentator, “a tempting target for an attack that was itself motivated as much by political as by scientific differences, and that was almost entirely focused on a side-issue in the book.”

In 2005, three professors from the University of Utah collaborated on a study which proclaimed that, through natural selection, Ashkenazi Jews became more verbally and mathematically intelligent than other ethnic groups [disclosure: the author of this piece is an Ashkenazi Jew].  The study became controversial, as most scholars wanted to avoid discussions of race and intelligence. In the New York Times, Harvard Professor Steven Pinker (a member of FIRE’s Board of Advisors) noted at the time that “it would be hard to overstate how politically incorrect this paper is” but that “it’s certainly a thorough and well-argued paper, not one that can easily be dismissed outright.” One writer at the time noted that, when he reviewed the paper with a wide range of geneticists, “not one dismissed it, but only a handful would discuss it on the record.”

PhDs in psychology, political science, and anthropology had all waded into the controversial waters of “race and intelligence”; they asked difficult questions similar to those earnestly pondered by Stephanie Grace, and likewise proclaimed that they could not accept facts simply because they want them to be true. Science allows no such shortcuts.

In April of 2010, after an argument with a fellow student, Grace’s angry interlocutor forwarded her November email to the Black Law Students Association. Grace became infamous both on and off campus. Her email reached the Above the Law legal blog and the highly trafficked website Gawker, which published her picture and falsely described her email as a “eugenics light e-mail screed.”

Harvard Law School Dean Martha Minow seemed to agree, and utilizing an irresponsible distortion of Grace’s original message, emailed the entire law school community to declare that such uncomfortable questions have no place in an academic institution:

I am writing this morning to address an email message in which one of our students suggested that black people are genetically inferior to white people.

This sad and unfortunate incident prompts both reflection and reassertion of important community principles and ideals. We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility. This is a community dedicated to intellectual pursuit and social justice. The circulation of one student’s comment does not reflect the views of the school or the overwhelming majority of the members of this community.

As news of the email emerged yesterday, I met with leaders of our Black Law Students Association to discuss how to address the hurt that this has brought to this community…

Here at Harvard Law School, we are committed to preventing degradation of any individual or group, including race-based insensitivity or hostility. The particular comment in question unfortunately resonates with old and hurtful misconceptions.  As an educational institution, we are especially dedicated to exposing to the light of inquiry false views about individuals or groups.

Minow, displaying the same deliberate misreading as Gawker, falsely accused Grace of “suggesting that black people are genetically inferior to white people”; rather, as the Dean must have been aware, Grace was asking for evidence to disprove this very fact. But Minow, and much of the rest of the Harvard Law community, had little interest in Grace’s actual questions or potential answers to them. Grace’s November email sparked little intellectual engagement; people generally did not respond with the scientific evidence she sought or with other studies that might nuance her premises. Dean Minow was clearly no exception. She declared without evident irony that Harvard dedicates itself to “exposing to the light of inquiry false views” while refusing to engage the person inquiring. She wrote of the importance of “freedom of expression,” while excoriating a person expressing herself for failing to accompany “speech [with] responsibility.”

The mere suggestion of racism, the mere whiff of a discordant or offensive view, was enough for the dean of Harvard Law School to declare the final truth about such matters in an email to the entire community, to distance the school from a student’s private intellectual inquiry, and to publicly shame the inquirer. The message seemed clear: such questions, no matter how earnestly, or privately, pondered, have no place at Harvard Law School.

Stephanie Grace wanted no part of this public controversy. Dean Minow appended Grace’s apology to her campus-wide email:

I am deeply sorry for the pain caused by my email. I never intended to cause any harm, and I am heartbroken and devastated by the harm that has ensued. I would give anything to take it back.

I emphatically do not believe that African Americans are genetically inferior in any way. I understand why my words expressing even a doubt in that regard were and are offensive.

Minow’s email became a teaching moment: Grace learned that the mere expression of “even a doubt” is enough to cause irredeemable offense. Under incredible pressure, Grace conceded Dean Minow’s faulty premise and acquiesced to Minow’s distortion of her views, undoubtedly hoping that her apology would make all the trouble disappear so that she could get on with her life.

There is no speech code on the books at Harvard Law intended to shield students from uncomfortable questions about race. But as sure and as invisible as the air HLS students breathe, a code exists, and it is severe: radical dissent and discomfiting inquiry have become a thing of the past. Dean Minow needed no Freshman Pledge; she proved in word and deed her adherence to a philosophy that kindness holds a place above academic inquiry.

As one Harvard Summer School professor would find out in 2011, many of Dean Minow’s colleagues in Harvard’s Faculty of Arts and Sciences feel the same way.

So Long, Swamy

Subramanian Swamy has taught at Harvard Summer School for most of the last forty years. He earned his PhD from Harvard in 1965 at age 26, a rising star whom Harvard was only too glad to add to its faculty. Despite a long political career in India, Swamy has maintained a yearly presence in Cambridge, returning each summer to teach economics courses. Quantitative Methods in Economics and Business seems basic enough, and Swamy could claim on-the-ground expertise for Economic Development in India and East Asia. His teaching has consistently been viewed as satisfactory (the only summer school student to complain about his politics this year rated the class favorably), he has faced no discipline for academic misconduct, and for decades his qualifications were deemed acceptable for a high-profile Harvard teaching position. By all accounts he has taught, and taught well, generations of Harvard students.

But the Faculty of Arts and Sciences essentially fired Swamy for expressing his political views in late 2011, singling him out for unprecedented academic scrutiny following an op-ed he wrote on the other side of the world. Three days after the July 13, 2011, terrorist attacks in Mumbai, India, Swamy published an op-ed in the Indian publication Daily News and Analysis proposing ideas on “how to wipe out Islamic terror.” Swamy’s piece contained radical, nationalistic prescriptions for the protection of his country against what he saw as four main goals of Islamist terror: the removal of India from Kashmir, the killing of Hindus and destruction of their temples, the turning of India into “Darul Islam,” and the attempt to change India’s demography through illegal immigration. In response, Swamy advocated renaming India “Hindustan,” disenfranchising non-Hindus unless “they proudly acknowledge that their ancestors were Hindus,” and removing more than 300 mosques that had been built over old Hindu temples in strategic locations.

Within a week Harvard students were circulating a petition calling for Swamy’s removal. The university administration listened politely and agreed that Swamy’s writings were “distressing” but, to the delight of free speech advocates everywhere, Harvard spokesperson Linda Cross emphasized that “It is central to the mission of a university to protect free speech, including that of Dr. Swamy and of those who disagree with him.” Harvard administrators stood by a professor’s right to trumpet recommendations for radical social change, even after 40 faculty members asked the dean of Harvard Summer School to take action to preserve Harvard’s “reputation” in the face of the controversy.

Perhaps Harvard administrators were concerned about the slippery slope inherent in punishing what professors call the controversial, the absurd, or the outrageous ideas expressed by their colleagues. Harvard certainly has had its share of controversial professors. Professor of Yiddish Ruth Wisse, before joining Harvard, stated in Commentary Magazine that the “Palestinian Arabs [are] people who breed and bleed and advertise their misery.” Harvard later gave Wisse an endowed chair.  Just last year, a visiting Weatherhead Fellow at Harvard, Martin Kramer, advocated that the West should stop providing “pro natal subsidies” to the Palestinians, in order to lower their birth rate and “crack the culture of martyrdom, which demands a constant supply of superfluous young men.” Amid calls for the visiting scholar’s removal, the directors of the Weatherhead Center for International Affairs stated that “those who have called upon the Weatherhead Center to dissociate itself from Kramer’s views, or to end Kramer’s affiliation with the Center, appear not to understand the role of controversy in an academic setting.”

The Weatherhead leadership understood that Harvard is not responsible for policing the academic or nonacademic opinions of its scholars. Yes, the word “Harvard” attached to an academic position constructs an elite megaphone, allowing the lucky few who earn it to command an audience when they speak on issues of consequence. But reasonable people do not imagine that Harvard institutionally agrees or possibly could agree with all parts of the huge, conflicting, diverse kaleidoscope of its scholars’ views.

Unlike Swamy, neither Wisse nor Kramer faced a crowd of faculty calling for their heads on the ground that their words constituted “incitement” to violence. While they faced criticism in the marketplace of ideas, their right to articulate what some deemed offensive and terrible went essentially unquestioned by their colleagues. But Wisse’s article was published in 1988, before such rights had become so watered down by Harvard’s desire to promote comfort, inclusiveness, and a particularly restrictive form of “pluralism.” Kramer was a visiting scholar whose directors defended him vociferously. Besides, he would not be returning each year to provide a regular reminder of his views or his difficult ideas.

But Swamy would likely come back in 2012 and then 2013, as he did every year, and members of the Faculty of Arts and Sciences had little interest in upholding its own promises of academic freedom.  The same group which pushed President Summers out of office overwhelmingly voted to drop Swamy’s courses. Professor of religion Diana Eck led the charge:

Freedom of expression is an essential principle in an academic community, one that we fully support. Notwithstanding our commitment to the robust exchange of ideas, Swamy’s op-ed clearly crosses the line into incitement by demonizing an entire religious community, demanding their disenfranchisement, and calling for violence against their places of worship.

Notwithstanding her stated belief in free expression (for those who reject free speech often proclaim love for it in the same breath), Swamy’s writing, Professor Eck proclaimed, “undermines Harvard’s own commitment to pluralism and civic equality.” And when Diana Eck says “pluralism,” she means something specific; she is perhaps most famous for her founding of the Pluralism Project, a Harvard Divinity School affiliated center dedicated to studying—and celebrating—religious pluralism in America. Pluralism is not merely “diversity” or the coexistence of differing opinions. Rather, Eck writes:

The language of pluralism is that of dialogue and encounter, give and take, criticism and self-criticism. Dialogue means both speaking and listening, and that process reveals both common understandings and real differences. Dialogue does not mean everyone at the “table” will agree with one another. Pluralism involves the commitment to being at the table—with one’s commitments.

Diana Eck’s betrayal of her own claimed principles becomes not merely apparent but stark; in her attack on Swamy, she made a mockery of a pluralistic commitment to dialogue, and instead revealed a fundamental fear of actual confrontation with the other. Eck’s speech to the Faculty of Arts and Sciences redefined Swamy’s opinion as “incitement to violence” in order to expel him and his views from Harvard’s marketplace of ideas. But as a scholar of religions, and especially as a scholar of religious dialogue, Eck no doubt understands that one religion often carries with it a concomitant threat to another; successful evangelism of any sort may lead to replacement or destruction of holy places without representing incitement to violence. Direct contradiction is part and parcel to religious dialogue, as interreligious discourse can often be an attempt to reconcile the seemingly irreconcilable. But a proclamation that such discourse can, and should, still occur is the very inspiration behind the pluralism project, and the vision that Eck ignores amid her fear of Swamy’s ideas. When faced with the outgrowth of her center’s own founding principle—the necessity of listening to and engaging with the contradictory—Eck betrays her own “commitment to being at the table,” and shuns the radical in the name of her own ideas of safety and comfort.

Thus also began a level of scrutiny of Swamy’s academic qualifications that had never before occurred at a meeting of the Faculty of Arts and Sciences considering summer school courses. Some of the faculty undoubtedly were relieved to recast the controversy in academic terms. Wasn’t it true that Swamy had not taught anywhere but Harvard for quite a long time? Wasn’t it true that, despite his political stature and other experience and qualifications, he was not publishing in the field of economics? No matter that Swamy was singled out; no matter that Harvard’s new-found standards were likely to disqualify other summer school professors.

No matter that Swamy’s qualifications had been deemed acceptable by the summer school and by Swamy’s Harvard peers in economics for decades. No matter that the faculty committee responsible for summer education, in a 14-0 vote, had approved Swamy’s summer courses once again. Philosophy professor Sean Kelly, a member of the committee, explained the earlier endorsement:

Some Council members felt strongly that under no circumstances should an otherwise qualified candidate’s political views be a factor in deciding whether to hire him or her to teach. They felt this was especially true in circumstances in which we were given strong assurances … that the political views in question in no way played a role in the candidate’s teaching or the substance of his courses. There was some dissatisfaction from these Council members that we were even having a discussion about the issue … [A]ll members agreed that the principle of free speech is one to which a University must be strongly committed, and that it sets a dangerous precedent to fire or refuse to re-hire someone on political grounds alone.

And those council members were prepared to support Swamy’s continued presence on the summer school faculty until Diana Eck rose to speak. Most of the council members reversed their votes, suddenly convinced, in Kelly’s words, that “the views expressed in Dr. Swamy’s Op-Ed amounted to incitement of violence instead of protected political speech.”

Such incitement occurred, Kelly implies, despite no mosques having been violently destroyed by masses of incited Indians following the op-ed’s publication.

But many members of the faculty likely understand that the op-ed was not a criminal incitement to violence, just as they likely understand that the op-ed falls far short of the standard of “incitement” that has protected the speech of all Harvard faculty (and all Americans) against the government since the Supreme Court announced it in Brandenburg v. Ohio in 1969. According to the law, incitement must be “directed to inciting or producing imminent lawless action and [be] likely to incite or produce such action”; Swamy’s op-ed, while containing political prescriptions that members of the faculty might find objectionable, hardly comes close to qualifying.

The United States Court of Appeals for the Ninth Circuit recently ruled that an individual’s repeated declaration that the U.S. President should be killed, replete with onomatopoeic words describing the sound of the bullets crashing against the President’s car, was protected speech. Dr. Swamy, for his part, had called for the removal of mosques as part of a broader political strategy against terrorism: perhaps an offensive political prescription, but without question “protected political speech.” It is almost certain that many, if not most, of the brilliant minds in the Faculty of Arts and Sciences understand the difference between protected speech and unprotected incitement; they understand that Professor Swamy’s words were legitimate under the normal principles of academic freedom. Nevertheless, the faculty betrayed principle in support of political correctness, and under the public eye of their colleagues, even those who initially supported Swamy’s rights rejected them during the open vote. It was easier for the majority of the faculty to prioritize kindness and a supposed commitment to pluralism—or at least to hew to an academic pretext to help them maintain an illusory adherence to principles of academic discourse—than to respect Harvard’s integrity as a true marketplace of ideas.

Conclusion

The American academy is built upon a relatively simple idea: the search for truth, enshrined in the Harvard motto “Veritas,” should be held above all else. But in recent years, Harvard has been slowly and steadily eroding its own foundation of free inquiry, as notions of comfort and campus tranquility have taken precedence over the free exercise of ideas. Indeed, while I relate many events above, there were many more about which I could have written. Having included the censoring of a student party because of the event’s title, the business school’s threat to punish students over a cartoon criticizing administrators, the English department’s cancellation of a poetry reading and lecture due to the poet’s radically pro-Palestinian views, or the rejection and excoriation of the University’s President due largely to an off the record speech, the last ten years at Harvard have seen a continual reaffirmation of the legitimacy and power of the moral censor.

While Harvard since 1636 has been responsible for much of the American academy’s growth into the greatest system of intellectual inquiry the world has ever known, it is also proving to be in the vanguard of anti-intellectual censorship, the very thing which, if unchecked, would guarantee the academy’s destruction. The free flow of ideas—even offensive, patently unkind ideas—now must avoid dams and boulders erected by Harvard’s new dictates of morality. Don’t sail in certain directions if you want to save your job, for on the intellectual edge of the world, hic sunt dracones.

Daniel R. Schwartz is a PhD candidate in Russian History at Brandeis University. He serves as a FIRE Program Associate and works as a Research Assistant and Paralegal for FIRE co-founder Harvey Silverglate. ]]> http://www.thefirelantern.org/a-2011-harvard-retrospective/feed/ 4 http://www.thefirelantern.org/a-roundup-of-2011%e2%80%99s-free-speech-case-law/ http://www.thefirelantern.org/a-roundup-of-2011%e2%80%99s-free-speech-case-law/#comments Tue, 03 Jan 2012 19:40:51 +0000 Andrew Kloster http://www.thefirelantern.org/?p=251 Student Case Law

While FIRE has won numerous victories this year in working to protect individual rights on college campuses, 2011 was a mixed year for the defense of students’ rights by the courts. Importantly, this year highlighted divergent theories of the First Amendment rights of students off campus. While some courts have held that schools are limited by the First Amendment in what they can regulate off campus, other courts this year held that things students say off campus can have almost unlimited disciplinary consequences on campus. This is a troubling trend, outlined in several cases below.

In June, the United States District Court for the District of Colorado held in Mink v. Knox, 2011 U.S. Dist. LEXIS 59380 (D. Colo. 2011) that a prosecutor who authorized an illegal search of the home of a student was not entitled to qualified immunity and was thus personally liable under 42 U.S.C. § 1983 for her unconstitutional actions. We have blogged about the implications of this case here on The Torch, but let’s quickly revisit the facts of the case: A student posted a satirical photo of a professor online, never expecting to have his home searched, to have his computer seized, or to spend a week in jail. All of this happened, however, as a result of one overzealous prosecutor. Thankfully, when a government official violates a “clearly established” constitutional right, under § 1983 that official no longer enjoys the protection of Eleventh Amendment immunity, and may be sued in his or her personal capacity and found liable for monetary damages. In this case, the prosecutor should have known better than to violate clearly established First Amendment rights: The United States Court of Appeals for the Tenth Circuit held in Mink v. Knox that it is “clearly established in this circuit that speech, such as parody and rhetorical hyperbole, which cannot reasonably be taken as stating actual fact, enjoys the full protection of the First Amendment and therefore cannot constitute the crime of criminal libel for purposes of a probable cause determination.” This rights violation ended up costing the prosecutor a cool $425,000.

Also in June, twin victories for student speech were handed down by the United States Court of Appeals for the Third Circuit. In the two cases of Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011) and J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), each of which involved students who were disciplined for creating satirical MySpace profiles mocking their school principals, the Third Circuit held that schools cannot “reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.” The school districts have filed a joint petition for certiorari before the Supreme Court of the United States, and the Court has the opportunity here to advise lower courts as to the scope of First Amendment protections for student off-campus speech.

If the Court takes one or both of these cases, the ensuing ruling would likely impact student rights beyond the K-12 level, as lower courts too often fail to recognize the bright-line distinction between rights enjoyed by K-12 students and rights enjoyed by college students. In July, the Minnesota Court of Appeals held in Tatro v. University of Minnesota that a public university could legitimately regulate off-campus speech (in this case, Facebook posts) where such posts fail the test outlined in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) by “materially and substantially disrupt[ing] the work and discipline of the university.” The court’s ruling not only expands the scope of Tinker off-campus (Tinker, on its facts and in its holding, would seem to only permit speech restrictions “in school”), but it applies Tinker to university students (while the language and facts of Tinker only seem applicable to K-12 schooling). We have blogged about Tatro before. The case is currently on appeal to the Minnesota Supreme Court, and FIRE has joined the amici curiae brief of the Student Press Law Center in support of student Amanda Tatro. This case will be one to watch in the coming year.

Also in July, the United States Court of Appeals for the Fourth Circuit issued its opinion in Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011). We have written about Kowalski before, and, like Tatro, Kowalski demonstrates an expansion of Tinker to off-campus student conduct. In Kowalski, a high school student’s MySpace page was found to violate the anti-bullying code of her school. With no factual analysis, the court simply held that “targeted, defamatory” speech causes “actual or nascent” substantial disruption, as does “unpunished misbehavior,” because that “can have a snowballing effect.” This poor analysis by the Fourth Circuit may give secondary school teachers and administrators carte blanche to regulate speech off campus.

In August, the United States Court of Appeals for the Eighth Circuit decided D.J.M. v. Hannibal Public School District No. 60, 647 F.3d 754 (8th Cir. 2011), once again applying Tinker to regulate off-campus speech. We have previously blogged about this case as well. Student D.J.M. was suspended when another student forwarded instant messages (IMs) to school officials; these IMs were deemed a “true threat” to school security, and thus unprotected by the First Amendment. The court also held that even if the IMs were not true threats, the school could punish the speech as reasonably foreseeable to cause a substantial disruption. Under the rule in D.J.M., if Student B reads something Student A writes on the Internet and Student B acts out, Student A may be punished. This is a dangerous precedent.

Also in August, the United States Court of Appeals for the Ninth Circuit applied last year’s controversial Supreme Court decision in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010) to the case of Alpha Delta v. Reed, 648 F.3d 790 (9th Cir. 2011). In this troubling, but not unexpected application of Martinez, the Ninth Circuit upheld San Diego State University’s denial of official recognition to a Christian fraternity and sorority based upon their violation of SDSU’s non-discrimination policy in requiring that their members share their religious beliefs. We at FIRE have previously noted: “[Under Martinez w]e expect devoutly religious groups-especially evangelical Christian groups-and other belief-based groups holding minority or dissenting viewpoints to be confronted with derecognition. Targeted groups will face a terrible choice: Either relinquish control of the group’s core message and allow all students, regardless of belief, the opportunity to obtain voting membership and leadership positions, or leave campus.” While the precise scope of Martinez is narrow, until the Supreme Court clarifies the issue, universities will continue to trample upon student associational rights.

In October, the Supreme Court denied certiorari in Rock for Life – UMBC v. Hrabowski, 411 Fed. Appx 541 (4th Cir. 2010), avoiding a potentially important issue related to student challenges of sexual harassment policies and other speech codes. The court also ducked the partner case of Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) back in May. Under traditional rules of “standing,” challenges to university speech codes (even where speech codes are couched as “harassment” codes) are able to be brought by students if the codes might dissuade students from speaking out, “chilling” their First Amendment rights. However, in both of these cases, the respective Courts of Appeals held that the plaintiffs had suffered insufficient injury to allow their cases to go forward, due to the lack of “concrete,” speech-chilling action on the part of university administrations. In Lopez, a professor repeatedly referred to a university code of conduct while he attempted to silence a student about the student’s stance on marriage. In Hrabowski, a university lawyer mentioned in a meeting related to a proposed anti-abortion poster that students might be “emotionally harassed” by the poster-implying that the university prohibitions on sexual harassment might apply to ban it from campus. The facts of both of these cases demonstrate specific actions by a university that could chill the speech of students, but the appellate courts nevertheless found that the student plaintiffs could not challenge the codes that threatened their right to free speech. These decisions on the issue of standing, therefore, represent a hurdle for students seeking to vindicate their First Amendment rights on campus, and are at odds with the relaxed standing requirements typically found in First Amendment cases.

At the close of 2011, the extent to which universities and K-12 schools can regulate the off-campus speech of their students is still very much unsettled. In 2012, we can look forward to the decision of the Supreme Court as to the certiorari petition in Layshock and Blue Mountain, which might provide some much-needed guidance on the issue. Of course, we’ll continue to fight for student rights here at FIRE, and we’ll keep you posted on all legal developments.

Faculty Case Law

Last year saw a handful of important cases related to university faculty First Amendment rights in the courts. Particularly, a number of cases dealt with the application of the United States Supreme Court case Garcetti v. Ceballos, 547 U.S. 410 (2006). Yesterday marked the first day of the annual meeting of the American Association of Law Schools; tellingly, the theme of this year’s meeting is academic freedom, and the AALS notes that after Garcetti, the “zone of protected professorial speech is shrinking.”

We have written about this worrying case many times before. To recap, Garcetti deals with when, precisely, the government acting as employer may regulate its employees’ speech. Breaking with prior precedent, the Garcetti Court ruled that when public employees engage in expressive activity pursuant to their official duties, that speech is normally not protected by the First Amendment. The Court in Garcetti declined to apply its holding to public university professors; Justice Kennedy’s majority opinion states that the Court “need not, and for that reason do[es] not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Following Garcetti, FIRE and other organizations (most notably, the American Association of University Professors) worried that courts might apply Garcetti to public university professors anyway. Our worrying has proven to be with good reason: Some courts have held that Garcetti applies to public university professors, and other courts have held just the opposite. This is a truly unsettled area of law.

In February, the United States District Court for the Northern District of Illinois issued a disappointing decision in Capeheart v. Hahs, 08-1423, 2011 U.S. Dist. LEXIS 14363 (N.D. Ill. Feb. 14, 2011). FIRE has written about this case before. Loretta Capeheart is a tenured associate professor of justice studies at Northeastern Illinois University (NEIU) in Chicago. She was a vocal anti-war advocate who spoke out in support of members of the Socialist Club of NEIU when they were arrested by campus police for protesting a CIA recruitment event in early 2007. Subsequently, Capeheart was passed up for a promotion, which she attributes to her political involvement. She filed suit in the United States District Court for the Northern District of Illinois. The court later dismissed her lawsuit, applying Garcetti v. Ceballos and holding that her political activity was pursuant to her “official duties” and therefore not protected by the First Amendment. On December 8, however, the United States Court of Appeals for the Seventh Circuit heard oral argument in Capeheart’s appeal, and we hope for a good decision in the coming year. The AAUP filed an excellent amicus brief on behalf of Capeheart, and it can be found here.

On the positive side, in April the United States Court of Appeals for the Fourth Circuit issued a landmark decision in Adams v. Trustees of the University of North Carolina – Wilmington, et al., 640 F.3d 550 (4th Cir. 2011). Professor Mike Adams is a conservative columnist who sued the University of North Carolina-Wilmington (UNCW) when his bid for promotion failed. He sued in the United States District Court for the Eastern District of North Carolina, alleging a number of claims, including First Amendment viewpoint discrimination and retaliation. The suit was dismissed on the university’s motion for summary judgment, but on appeal, the Fourth Circuit reversed the lower court’s dismissal of the First Amendment speech claims, noting that “the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university.” The Fourth Circuit then held that, as a matter of law, Adams had been speaking as a citizen upon a matter of public concern, and remanded the case to the district court for further proceedings. Joined by the AAUP and the Thomas Jefferson Center for the Protection of Free Expression, FIRE had filed an amici curiae brief with the Fourth Circuit in July of 2010 urging this result. FIRE’s detailed analysis of the ruling is available here.

In October, the United States District Court for the Middle District of Louisiana ruled in favor of Ivor van Heerden, an engineering professor at Louisiana State University (LSU) who claims he was fired as a result of comments he made that were critical of the U.S. Army Corps of Engineers for their design and construction of the levees that broke following Hurricane Katrina. FIRE has written about this case before. When LSU filed a motion for summary judgment, it cited Garcetti for the proposition that his comments about the levees were pursuant to his employment and therefore unprotected by the First Amendment. The court disagreed and denied that part of the summary judgment, noting that, partly because LSU warned van Heerden not to speak with the media, when he did speak with the media it was unauthorized, outside the scope of employment, and thus protected by the First Amendment.

In December, the Idaho Supreme Court upheld the lower court dismissal of Habib Sadid’s lawsuit challenging his firing from his tenured professorship at Idaho State University. We wrote about Sadid’s lawsuit when it was filed in 2009. A representative for the American Federation of Teachers characterized the decision as a “massive win,” because while Sadid’s claims were dismissed, the court held that his speech was not made pursuant to his official position, and that his speech was on a matter of public concern. In so holding, the Idaho Supreme Court was implicitly affirming the lower court’s reliance on the application of Garcetti by the United States Court of Appeals for the Ninth Circuit in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). The AAUP also filed a brief in support of Sadid, also applying Eng.

To wrap up, 2011 demonstrated widely disparate applications of Garcetti. To what extent a public university professor’s speech is protected by the First Amendment remains unsettled. We look forward to a decision by the Seventh Circuit in Capeheart, but unless and until the Supreme Court clarifies its academic exception in Garcetti, things will remain muddled.

As we approach another election season, the Foundation for Individual Rights in Education (FIRE; thefire.org) remains concerned by the continuing trend towards preemptive censorship of political expressive activity on our nation’s college and university campuses.

The 2008 election cycle presented several abuses of student and faculty rights with regard to political activity and expression on campus. At the University of Illinois, for instance, faculty and staff members were told that they could not participate in a wide variety of political activity on campus, including wearing a pin or button in support of a political candidate or placing a partisan bumper sticker on their cars. At the University of Oklahoma, students and faculty were notified that they could not use their school email accounts to disseminate any partisan or political speech, including political humor and commentary.

These and similar cases have demonstrated to FIRE the need to reiterate and emphasize the protections that apply to political speech on campus. In determining policy regarding political speech, colleges and universities must heed Internal Revenue Service (IRS) regulations, as well as state and federal law. However, correctly interpreted, none of these legal guidelines seriously conflict with the equally crucial duty to uphold the First Amendment and basic principles of free expression on campus.

In October 2004, weeks before the presidential election, FIRE issued a statement outlining ways in which universities could “prove themselves as models for democratic discourse” instead of succumbing to censorship. In 2008, we updated our statement with specific guidelines for faculty, staff, and student speakers on campuses both public and private. Now, for 2012, we again present an update of our Policy Statement on Political Activity on Campus in the interest of securing the right to political activity and expression on campus for all students and faculty who choose to exercise it.

SUMMARY

Students and student groups at public colleges and universities enjoy the full protection of the First Amendment and must be free to engage in political activity, expression, and association on campus. Students and student groups at private colleges and universities are entitled to that degree of freedom of expression and association promised them in institutional handbooks, policies, and promotional materials. It is important to note that the overwhelming majority of private colleges and universities provide extensive promises of free speech in their materials, and therefore should be held to standards comparable to those required by the First Amendment.

Faculty at public colleges and universities enjoy a broad right to engage in partisan political speech when such expression occurs outside the parameters of their employment-related activities. This right allows for a wide variety of political speech, while the list of activities in which faculty at public universities may not participate is comparatively narrow and easily understood. Faculty may be prevented, for instance, from fundraising in class, making statements in support of candidates or a party on university letterhead, or otherwise offering oral or written public support for a candidate or party in a manner that could be reasonably perceived as attributable to the university.

Faculty at private colleges and universities enjoy the right to free speech as specified in their contracts with their employing institution. If freedom of expression is guaranteed, the faculty members of private institutions may engage in partisan political speech without impacting the 501(c)(3) status of their institution when such speech is not likely to be identified as officially representing the views of their employing institution. As a general rule, the presumption should be that faculty are not speaking on behalf of the university. It is, however, possible to overcome this presumption. Faculty who also serve in an administrative capacity are accordingly more likely to run afoul of rules preventing the appearance of official endorsement.

Non-faculty employees of universities do not enjoy the same political speech protections as students and faculty.

Students, student groups, and faculty members do not endanger the 501(c)(3) status of private colleges and universities by engaging in partisan political speech when such speech is clearly separate and distinct from the institution’s views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, or to faculty who do not hold a position as an administrator or department head.

At public universities, partisan student groups may use institutional resources and facilities for partisan political expression and activities when the use of such resources and facilities is obtained in the same way that non-partisan student groups obtain such use. Similarly, students and student organizations at private institutions promising freedom of speech are not prohibited by IRS regulations from using student activity fees to engage in political speech and activity. They may also use institutional resources and facilities for such speech, again provided that (a) the resources are made available to all speakers and student groups, and (b) they follow the same procedures observed by all other student groups seeking to obtain use of university resources.

ANALYSIS

Students

By law, students at public universities enjoy the full protection of the First Amendment on campus. This protection has been affirmed by decades of Supreme Court jurisprudence. The Court has stated, for instance, that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” and that there is no basis in the Court’s jurisprudence for the proposition that “First Amendment protections should apply with less force on college campuses than in the community at large.” Healy v. James, 408 U.S. 169, 180 (1972). The Court has consistently upheld the notion that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” Id.

When it comes to partisan expression, it is important to remember that one of the core motivations of the First Amendment was to protect political speech from official censorship or interference. As the Supreme Court has declared, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Elsewhere, the Court has emphasized that “speech concerning public affairs is more than self-expression; it is the essence of self-government,” reflecting “our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (internal quotations omitted). Given these holdings, it becomes clear that the right to engage in partisan and political speech is unequivocally enjoyed by students at public universities.

Students at private universities are entitled to receive that degree of freedom of expression promised them in university publications like handbooks, codes of conduct, and promotional materials. Courts have held in several cases that private universities must live up to these types of promises, based on a contract theory. See Tedeschi v. Wagner College, 49 N.Y.2d 652 (Ct. App. 1980); McConnell v. Le Moyne College, 2006 N.Y. Slip Op. 256 (Sup. Ct. 2006); Schaer v. Brandeis, 432 Mass. 474 (Sup. Ct. 2000). Likewise, the Seventh Circuit has stated that “the basic legal relation between a student and private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.” Ross v. Creighton Univ., 957 F.2d 410, 416 (7th Cir. 1992) (internal quotations omitted). Therefore, any student at a private college or university which promises speech rights to its students is entitled to engage in a wide variety of partisan and political speech.

Given that it is difficult to attract students to schools that promise them few or no rights, most colleges promise robust free speech rights in their materials. Indeed, of the 392 colleges and universities rated in FIRE’s 2012 report on campus speech codes, only seven private institutions granted so few rights as to be listed as “not rated”: Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, Vassar College, Worcester Polytechnic Institute, and Yeshiva University. It is FIRE’s belief that students who attend private colleges that promise free speech rights should enjoy the same level of free speech protections as students at public colleges and universities.

In California, students at non-sectarian private universities enjoy the same First Amendment protection afforded their public university counterparts by virtue of California’s “Leonard Law” (California Education Code § 94367). See Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip opinion). Given that students at public universities enjoy the right to disseminate a broad range of partisan and political messages, private university students in California enjoy the same right by virtue of the Leonard Law.

Student Groups

Generally speaking, the freedoms afforded student groups mirror the freedoms afforded individual students. Student groups at public universities enjoy First Amendment rights of free expression and association. Student groups at private universities enjoy those freedoms promised them by handbooks, codes of conduct, and promotional materials.

Student Groups at Public Colleges and Universities

At public universities, student groups must be able to freely express the political viewpoint of their choice. Like individual students, the speech of student groups must be limited by the very few exceptions to the First Amendment’s protection of free expression (including obscenity, intimidation, true threats, incitement, and harassment—as defined by law, not by university regulation) and by reasonable and content-neutral time, place, and manner regulations. This means that student groups must be allowed to publish, sponsor, advocate, denounce, or otherwise engage in political expression as they see fit.

Student groups at public universities must also be free to determine their own qualifications for membership and leadership, thus exercising their First Amendment right to freedom of association. Public universities must recognize and allow liberal groups to be liberal, libertarian groups to be libertarian, and conservative groups to be conservative. Denying a political or ideological student organization the right to associate with other students who share the group’s beliefs deprives them of their full freedom of association, a basic right guaranteed by the First Amendment. (It is important to note the Supreme Court’s recent holding in Christian Legal Society v. Martinez, 561 U.S. ___, 130 S. Ct. 2971 (2010), in which the Court held that a public university’s law school did not violate the First Amendment in denying recognition to a student group that sought to accept only those students that shared its beliefs as voting members or leaders. However, this narrow decision rested solely on the school’s unique “all comers” policy, which required all student groups to accept all students, regardless of belief. While the Court deemed such a policy constitutional, it did not mandate the use of such a policy and insisted that those schools maintaining such a policy enforce it evenly. FIRE believes that “all comers” policies are prohibitively difficult to administer and deny students the opportunity to associate around shared beliefs.) Moreover, public universities may not target particular political or ideological student groups for forced inclusion on account of their viewpoint—no matter how unpopular their views are on campus—because such viewpoint-based restrictions are an especially pernicious violation of the First Amendment.

Further, student groups at public universities may not be denied access to funds or university resources available to other groups on account of their partisan commitments. Student activity funds, when comprised of student activity fees, are not institutional resources. Rather, as the Supreme Court held in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 851-52 (1995), they are “a fund that simply belongs to the students.” Therefore, activities, events, speaking engagements, and other partisan activities funded by the student activities fund are not institutional activities. When a public university decides to use student fees to fund a multiplicity of independent student groups, each student group retains its status as a private party expressing its personal viewpoint and cannot be censored by the university, nor cautioned against using allocated fees for “partisan purposes” or other political speech. If a public university denies such funding to a student organization because of its partisan message or ideology, it is engaging in unlawful viewpoint discrimination. Id. at 834.

With regard to political activity on student groups’ websites and hyperlinks to politically-oriented student groups’ websites on the university’s official website, universities sometimes attempt to limit such speech out of concern that not only links to student websites, but also links to third-party websites on linked student websites, might be construed as the university’s own political statement. However, a university’s official website does not automatically become implicated in a linked website’s political activity. The presumption in such cases should be that the speech is not attributable to the university, and this presumption should be overcome only where the speaker represents himself or herself as speaking on behalf of the institution to the extent that a reasonable person would believe this to be the case. Just as with general forum-related issues, whether a university website’s links are partisan or not must be determined by an ad-hoc assessment of all relevant facts and circumstances, including the context for the link on the organization’s website, whether all candidates are represented, any exempt purpose served by offering the link, and the directness of the link between the organization’s website and the webpage that contains material favoring or opposing a candidate for public office.

Section 501(c)(3) of the United States Internal Revenue Code, discussed in further detail below, does not require all linked websites on a university’s official website to be free of campaign activity. A website that provides links to all candidates in an election on a viewpoint-neutral basis would be in full compliance. Thus, even if a university’s main website linked to student organizations’ websites that actively campaigned for individual candidates, so long as the university’s website did not appear to favor some candidates over others by, e.g., giving favorable arrangements to websites campaigning for a specific candidate, or excluding only those websites that campaign for a specific candidate, the university would not have not engaged in prohibited political activity by linking to student websites.

Additionally, a university would not be responsible for political activities carried out on third- party websites that are twice-removed, i.e., websites that are linked from a site listed on an official website. Here, the context and the arrangement of links are crucial factors in determining whether a nonprofit is responsible for partisan content on a third-party website. As a student organization’s activities are typically understood to take place with a great degree of independence from the host university, links on a student organization’s website would not, by its context, indicate the host university’s official position. Absent indications by the host university that it implicitly or explicitly endorses the political content of the third-party website, the host university has little to fear from links to extramural websites on student organizations’ websites.

Student Groups at Private Colleges and Universities

Student groups at private universities, while not protected by the First Amendment, are entitled to exercise those freedoms promised them in university materials, literature, and policies. As is the case with individual students, the promises made by a private university regarding student groups’ rights are enforceable under a contract theory. Therefore, if a private university states in its materials that student groups on campus are entitled to robust expressive and associational rights, it must live up to its promise.

As discussed below, student groups at private universities do not endanger their university’s 501(c)(3) tax-exempt status by engaging in partisan speech, even when using university resources, when (a) those resources are made available to all speakers and student groups, regardless of political viewpoint, and (b) partisan student groups follow the same procedures observed by all other student groups in obtaining use of university resources.

Faculty

Faculty members at public colleges and universities have traditionally been accorded robust speech rights under the rubric of academic freedom. The Supreme Court stated many years ago that “[t]o impose any straight jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation,” because “[s]cholarship cannot flourish in an atmosphere of suspicion and distrust.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Therefore, the Court has held that academic freedom is a “special concern of the First Amendment” and that “[o]ur nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (internal citations omitted). In recognition of the essentiality of academic freedom, most colleges and universities—both public and private—have adopted the American Association of University Professors’ (AAUP’s) statements on academic freedom. This is relevant both in terms of the promises made by universities regarding professors’ academic freedom and in terms of the expectations that faculty members hold.

Further, individual state constitutions, state caselaw, collective bargaining agreements, and faculty resolutions may provide for additional protections or rights beyond those enunciated by the First Amendment or federal caselaw. Faculty members at public universities are encouraged to consult these sources when considering the scope of their speech rights on campus.

At the same time, faculty members at public colleges and universities, like other public employees, may sometimes be restricted in what they say by their employer. The Supreme Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) held that “when public employees make statements pursuant to their official duties … the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421. However, the Court’s opinion purposefully left unresolved the specific question of whether the same holds true for the speech of university faculty, noting that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests.” Id. at 425. Given the fundamental importance of academic freedom on a university campus, the fact that free expression is vital to the unique pedagogical work of professors, and that universities are ideally continuously inundated with new and challenging ideas, there is a good argument to be made that Garcetti should not apply in the academic setting.

What remains clear, even after Garcetti, is that faculty at public colleges and universities enjoy the right to engage in a wide variety of partisan political speech. Even under a broad construction of Garcetti’s “pursuant to their official duties” element, faculty members are free to participate in political rallies on campus, express partisan messages outside of the classroom (for instance, by wearing political buttons), disseminate political speech via email, post political humor and commentary on their office doors, and much more. Professors taking part in such activities should be understood to be speaking as citizens on matters of public import, not as faculty members acting pursuant to their job-related duties. Confirming this understanding, the United States Court of Appeals for the Fourth Circuit held in a 2011 decision that a lower court had improperly dismissed a public university professor’s First Amendment lawsuit against his institution. The professor’s lawsuit alleged that he had been denied a promotion due to the conservative political viewpoints he had expressed in his work as a columnist. Adams v. Trustees of the University of North Carolina – Wilmington, 640 F.3d 550 (4th Cir. 2011). In so deciding, the Fourth Circuit found that the professor’s columns were unrelated to his assigned teaching duties, and were clearly the expression of a citizen speaking on a matter of public concern. The appellate court further held that the expression implicated the professor’s right to academic freedom, as it is understood that faculty members will provide such commentary as a function of their role as academics.

Moreover, the presumption must be that a professor’s political speech represents his or her own views, not the views of the university as a whole. This presumption is overcome only in exceptional situations, such as when a professor implies that he or she actually is speaking on behalf of the university. Otherwise, it makes little sense to attribute every faculty member’s expression to the institution, as such a diverse cacophony of voices rarely, if ever, produces a singular, coherent message. Therefore, unless a university can demonstrate that a professor’s political expression threatens the proper functioning of the university and that its interest in preventing such disruption outweighs the professor’s interest in speaking, he or she enjoys the right to speak, even post-Garcetti.

While working, faculty at private universities and colleges enjoy the right to free expression promised them in their contractual agreements with their employing institution. The extent of this right and its potential impact on the private college or university’s status as a 501(c)(3) tax-exempt non-profit organization is discussed below. Of course, when not working, private university faculty members enjoy the fullest protection of the First Amendment as private citizens.

Staff

Non-faculty employees of universities do not enjoy the same political speech protections as students and faculty. Under Garcetti, staff at public universities making political statements pursuant to their official duties can presumptively be disciplined for engaging in political speech. Again, individual state constitutions and state caselaw may provide for additional protections or rights beyond those enunciated by the First Amendment or federal caselaw. Staff members at public universities are encouraged to consult these sources when considering the scope of their speech rights on campus. Staff at private universities must follow their employer’s regulations.

It is important to note that student-employees at both public and private schools should be accorded the same speech rights in their capacities as students as their peers. Too often, colleges forget the “student” part of the student-employee equation. Students should not give up their rights to freedom of expression or association as a function of working for their college.

Private Colleges and Universities as 501(c)(3) Organizations: Political Activity

In FIRE’s experience, private colleges and universities often cite their tax-exempt status as justification for banning political activity. Accordingly, it is important to clarify exactly what political activity is and is not prohibited by the Internal Revenue Code, and how to know the difference.

Background

Private colleges and universities usually operate as 501(c)(3) non-profit organizations. This means that, as non-profit institutions incorporated exclusively for educational purposes, they are exempt from paying federal income tax under United States Internal Revenue Code 26 U.S.C. § 501(c)(3). (As government instrumentalities, public colleges and universities are also exempt from federal income tax, but are granted that status under section 115 of the Internal Revenue Code.)

Section 501(c)(3) also restricts qualifying non-profit organizations from engaging in certain political activity. Specifically, 501(c)(3) organizations cannot “participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.” In a 2006 statement, the IRS defined prohibited political intervention as “any and all activities that favor or oppose one or more candidates for public office,” including but not limited to “[d]istributing statements prepared by others that favor or oppose any candidate,” “[a]llowing a candidate to use an organization’s assets or facilities … if other candidates are not given an equivalent opportunity,” “[c]oordinating institutional fund-raising with fund-raising of a candidate for public office,” and “[s]ponsoring events to advance the candidacy of particular candidates.”

Whether or not a 501(c)(3) organization has engaged in prohibited political activity is an ad hoc determination contingent upon examination of “all of the facts and circumstances of each case.” However, in the campus context, the IRS has interpreted the restriction on political activity differently in light of the educational mission of colleges and universities, allowing certain activities (such as a political science class that requires students to work on a campaign, as long as the student, not the instructor, is allowed to choose the campaign; or a political editorial in favor of a candidate published in a student newspaper) that would otherwise likely constitute prohibited activity.

Application

Despite the seeming severity of the restrictions on political activity at private colleges and universities imposed by the requirements of section 501(c)(3), however, it is extremely important to note that these prohibitions apply to the institution itself and those reasonably perceived to be speaking on its behalf, not to individual students, faculty, or staff engaged in clearly individual, unaffiliated activity. In a 1994 statement, the IRS made clear that “[i]n order to constitute participation or intervention in a political campaign … the political activity must be that of the college or university and not the individual activity of its faculty, staff or students.”

There is a greater risk that an individual’s political activity may be attributed to the university as a whole when that individual is a high-level administrator, but this risk diminishes greatly when one moves down the chain of command to lower-level administrators, and almost disappears completely when one reaches the political activity of students and faculty members who do not also serve as administrators or department heads. As such, many of the fears expressed by administrators at private colleges and universities about partisan student and faculty political activity impacting the university’s tax-exempt status are unfounded.

In determining the potential impact of student and faculty political activity on a private university’s tax-exempt status, some important guidelines should be remembered. First, the political activity of students and faculty, unless reasonably perceived as communicating an official institutional position, generally does not impact tax-exempt status. Second, the use of institutional resources and facilities by established student groups for partisan purposes is allowable as long as the groups pay the normal fee (if any) and obtain the use of the resources and facilities through the same process used by all student groups.

To be clear: As long as partisan political activity on campus by students and student groups is neither privileged nor hindered by the institution, and as long as partisan political speech by students and faculty does not overcome the strong presumption that they do not speak for the institution, then the tax-exempt status of universities and colleges should not be affected.

CONCLUSION

Students, student groups, and faculty at public and private universities should enjoy a robust right to engage in political expression on campus-and they generally do, as we have documented here. This is as it should be; political speech is a unique and vital component of democratic participation in the United States. Accordingly, the abilities to create, engage, support, critique, refute, and verify the content of speech are necessary civic skills crucial to the health of our democracy. As the Supreme Court has observed: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy, 354 U.S. at 250.

But too often—and particularly in election years—FIRE confronts censorship of political expression on campus. The proffered administrative rationales vary from case to case, but usually revolve around profoundly mistaken ideas about the university’s legal obligations. As we have described in this statement, the law tends to encourage more speech on campus, and interpretations that circumvent the function of a university as a “marketplace of ideas” are usually wrong.

Whenever students, student groups, and faculty members are prohibited from engaging in the political issues of the day, our democracy suffers. FIRE urges universities and colleges to carefully consider the unique function our institutions of higher education play in fostering debate and discussion on the most important issues of our time, and to greet with suspicion any legal interpretation or contrivance that would undermine this crucial role.

Earlier this year, the United States Department of Education’s Office for Civil Rights [1] that virtually all of our nation’s colleges and universities utilize our judiciary’s lowest standard of proof, the “preponderance of the evidence” standard, in adjudicating allegations of sexual harassment and sexual assault. Confronted by the threat of losing federal funding for failure to comply with OCR’s new directive, colleges and universities nationwide have scrambled to revise their policies to comport with OCR’s April 4, 2011, “Dear Colleague” letter.

Research conducted by the Foundation for Individual Rights in Education (FIRE; thefire.org) demonstrates the depth and breadth of the damage done to student due process rights and university independence. The data confirm two main points. First, the OCR letter disproportionately affects higher-ranked [2] schools. Second, numerous schools would not have otherwise changed their standards of proof. [3]

The following are some of the major trends highlighted by FIRE’s research:

• -39 colleges ranked in the top 100 have already changed or will be required to change their standard of evidence to comply with the OCR mandate. [4]
• -Nine colleges ranked in the top 10 did not use the OCR-mandated “preponderance” standard prior to the OCR letter. [5]
• -17 of the top 100 colleges previously used a “clear and convincing evidence” or “beyond a reasonable doubt” standard.
• -After the OCR letter, four of these colleges quickly changed to the OCR-mandated standard.
• -Only one school [6] out of the top 100 colleges previously used a standard clearly lower than “preponderance of the evidence.”

OCR’s New Requirements

OCR now mandates that every college or university receiving federal funds use the “preponderance of the evidence” standard in adjudicating allegations of sexual harassment or violence. This means that any accused student will be found guilty if the college determines that it is “more likely than not” the student is guilty. Expressed mathematically, the preponderance of the evidence standard requires only 50.01% certainty that the accused is guilty of the charge. This is our judiciary’s lowest standard of proof, and its incorporation means that if a factfinder is even a scintilla more persuaded that a student is guilty rather than innocent, the student will be convicted.

The preponderance of the evidence standard does not sufficiently protect an accused person’s right to due process. While this standard is acceptable for lawsuits regarding money, allegations of sexual violence or sexual harassment are far more serious than disputes that can be resolved by transferring money from one individual to another. It is difficult to overstate the harm caused to a student who is falsely convicted of sexual violence. Since claims of sexual violence often involve alcohol and drug use, few or no witnesses, and other complicating factors, the risk of error introduced by using the lowest possible standard is severe. Further, using the lower standard of evidence for such serious accusations is at odds with our national principles of justice, which hold that those accused of crimes are innocent until proven guilty.

While defenders of the new standard argue that civil courts rely on the preponderance of the evidence standard in certain circumstances, this comparison ignores the fact that the range of due process protections afforded parties in civil court are often unavailable in campus hearings. Civil trials are governed by longstanding procedural rules that carefully balance access to judicial remedies with protections against frivolous claims and ensure that relevant evidence is heard and evaluated, that an accurate verdict is reached, and that decisions are impartial and final. Campus tribunals, on the other hand, do not guarantee this same basic fairness; indeed, as Professor KC Johnson has observed, “Campus disciplinary procedures already are heavily tilted in favor of the accuser and against the due process rights of the accused.” [7] OCR magnifies these deficiencies by requiring our judiciary’s lowest standard of evidence for allegations of sexual assault and inverts our normative judicial understanding that the more serious the alleged crime, the greater due process protections for the accused.

OCR’s new regulations also mandate that if a university’s judicial process allows an accused student the right to an appeals process, the university must allow the accuser the ability to appeal as well. This stands in contrast to the basic rules of fairness of our criminal justice system and resembles a violation of a criminal law defense called “double jeopardy,” whereby someone accused of a crime cannot be tried for the same charges again once the original hearing has properly ended in either acquittal or conviction. For the same reasons of fundamental fairness that our criminal justice system does not allow those accused of crimes to face “double jeopardy,” colleges and universities should not force their students to face a second hearing for the same charge after they have been cleared. Because accused students are already subjected to an inappropriately low standard of proof, allowing accusers to appeal a finding of innocence only amplifies the due process problems introduced by OCR’s “preponderance of the evidence” mandate. Further, since appeals are often handled by a lone administrator, this appeal-by-prosecutor will often serve to obviate any due process protections afforded to the accused in the initial hearing, as that administrator may be empowered to rehear the case with no procedural oversight.

Prior to the “Dear Colleague” letter, colleges were allowed discretion in crafting their disciplinary procedures, taking into consideration their own concerns, unique circumstances, and level of respect for the rights of the accused. In 2001, for example, OCR issued guidance to schools granting them considerable autonomy in their investigations, noting that “[p]rocedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.” [8]

The April 4, 2011, letter is a clear deviation from prior OCR practice. While OCR has previously issued guidance documents to assist universities in understanding the different kinds and the relevance of evidence, [9] the “Dear Colleague” letter represents the first time OCR has told all universities that “preponderance of the evidence” is the only standard that complies with Title IX. [10]

Survey Findings: Colleges and Universities Set Their Own Standards

To gauge the impact of OCR’s new evidentiary standard mandate, FIRE surveyed the top 100 colleges and universities in the country, as defined by the 2011 U.S. News & World Report rankings.

Nine of the colleges ranked in the top 10 used a standard other than preponderance of the evidence. [11] Stanford University, for example, took a cue from our criminal justice system and required that allegations of sexual misconduct be proved “beyond a reasonable doubt.”

Not all colleges went as far as Stanford. In total, 39 of the nation’s top 100 schools, most of them in the top 50, required that allegations of sexual misconduct be proved by a standard other than “more likely than not.” Of these 39, 15 schools did not specify any standard of proof. Brown University, the outlier, required a lower standard, only a “reasonable basis.”

In general, the higher a school’s U.S. News ranking, the more likely that school would protect accused students with a higher standard than the OCR-mandated 50.01% standard.

Because of OCR’s new regulations, colleges are no longer permitted to determine for themselves the appropriate level of due process protections granted to students accused of some of society’s most heinous crimes, and instead must apply the same low standard of proof regardless of the totality of their relevant policies for ensuring fair and equitable hearings.

Students, Faculty, and Administrators Prefer a Higher Standard of Proof

Colleges and universities quickly scrambled to comply with the new OCR rules. Several of these schools have explicitly noted that the only reason they have changed their policies is the new OCR mandate. [12] Without the OCR mandate, it is unlikely any of these schools would have changed their standards of proof.

Prior to the DOE mandate, many universities had discussed, and rejected, the lower standard of proof. At Cornell University, for example, public comments showed strong support for the “clear and convincing evidence” standard.

As one student commenter pointed out:

The stakes in some cases may be too high for preponderance to be an appropriate standard. For example, as a student, I would consider expulsion from school the scholastic death penalty. I’m sure many others feel the same way. If a parking ticket is in dispute, the preponderance standard is acceptable. But, if a student’s future livelihood is in the balance, the “clear and convincing” standard is by far more appropriate than preponderance. [1]

Another commenter noted:

American law uses “beyond a reasonable doubt.” My former high school uses “more likely than not.” Why would Cornell try to become more like a high school … ?

Similarly, when Stanford University considered lowering its standard of proof from “beyond a reasonable doubt” to “clear and convincing evidence” in 1991, a coalition of liberal and conservative students and professors opposed the measure. [14] A group of Stanford professors noted that “[t]here is no doubt in our minds that the proposed changes are a fundamental attack on legitimate student rights to a fair hearing.” The Stanford Daily student newspaper wrote an editorial criticizing the changes as well:

It is not plausible that the chance of convicting innocent students would not increase if the probability of convicting the guilty increased … Consider the obvious equation: If more people are convicted of wrongdoing, the chances of miscarried justice also increase.

These fears were realized years later, when, in response to OCR’s “Dear Colleague” letter, Stanford University switched from requiring proof “beyond a reasonable doubt” to the “more likely than not” standard in the middle of a student’s sexual misconduct case. A survey of the jurors afterward indicated that at least one would have voted “not guilty” had Stanford retained the “beyond a reasonable doubt” standard of proof. While the majority of colleges with higher standards of proof have yet to comply with OCR’s mandate, future changes will likely lead to further injustices.

American university professors are also concerned about requiring colleges to adjudicate disciplinary proceedings at a lower standard of proof. The problems identified by students have been confirmed by the American Association of University Professors (AAUP). The AAUP issued a response to the OCR “Dear Colleague” letter on August 18, 2011. [15] In this letter, the AAUP took a clear stance against the new rules:

Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, we believe that the “clear and convincing” standard of evidence is more appropriate than the “preponderance of evidence” standard.

As noted in another letter from the AAUP to OCR, the AAUP has recommended this standard since 1957. [16]

At least one university’s general counsel publicly suggested that OCR has no business setting such standards in the first place. Princeton University’s general counsel noted in March of 2010:

We are unaware of any controlling judicial authority, or any applicable federal or state statute, that requires the University to adopt a “preponderance of the evidence” standard for student disciplinary matters involving allegations of sexual assault or harassment. [17]

These strong words were spoken before the OCR letter, however. Now that universities are threatened with the loss of federal funding, they are not speaking out.

Violation of the Administrative Procedures Act

Ironically, the “Dear Colleague” letter may not itself be legally sound, and colleges may be changing their rules under an invalid mandate. As noted above, prior to this guidance, colleges were permitted to take institutional norms into account when crafting their guidelines for investigating and resolving sexual misconduct claims. It has been nearly 40 years since Title IX passed, and only the April 4, 2011, letter gives any indication that colleges must comply with a “one size fits all” system for resolving allegations of sexual misconduct.

To introduce a new agency rule, OCR is obligated under the federal Administrative Procedures Act (APA) to publish a notice of its proposed rules change and must allow a period for public comment. OCR must also fully respond to issues and data raised by the public in any final rule. [18] When agencies such as OCR do not follow the APA’s notice-and-comment requirements, they effectively change the law without any democratic accountability, blindsiding citizens with new rules.

In fact, that is exactly what OCR did here. On April 4, 2011, colleges across America received a letter telling them that they had to change their rules or face losing federal funding. No previous notice had been given, and no comments were taken on the proposed change in law. As a result, colleges have been forced to provide lower levels of due process protection for accused students, even going so far as to switch standards of proof in the middle of disciplinary hearings in the name of compliance.

One way to overturn OCR’s unlawful action would be for a college or university to refuse to comply. Then, when the Department of Education seeks to withdraw federal funding, such as by refusing to provide student loans for the university’s students, the university could sue in federal court, where a judge would likely throw out the new OCR rules for being in violation of the APA, and reinstate the old rules permitting institutional autonomy.

This scenario is unlikely, however, because the loss of federal funding is such a huge threat to universities that they are unlikely to choose to stand up for principle, even if they are supported by broader organizations such as the AAUP or the American Council on Education. Students’ due process protections, meanwhile, will continue to suffer.

Conclusion

Colleges and universities did not consent to OCR’s mandate, nor have many of their students, faculty members, and administrators. The concerns voiced by FIRE and the AAUP have yet to receive an answer from OCR. Unfortunately, much damage from OCR’s April 4 letter has already been done. While universities such as Harvard University, Princeton University, and Yale University have not yet lowered their protections for the accused, a number of schools have, such as Columbia University, the University of Chicago, and the University of Notre Dame.[19] Because it is time-consuming and costly to review and change these policies, colleges may not reinstate their previous, more protective policies, even if OCR’s new mandate is later found to have violated the APA. Under OCR’s new requirement to use the lowest standard of evidence, due process protections in the judicial systems of nearly every college and university in the United States have been forced to their lowest levels yet.

[1]“Dear Colleague” Letter, Office of the Assistant Secretary, Office for Civil Rights, Department of Education, April 4, 2011, available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.

[2] Rankings according to the 2011 U.S. News & World Report “National University Rankings” of U.S. colleges.

[3] The College of William & Mary and the University of Virginia are the most obvious examples, as the policies of both schools state explicitly: “The Department of Education’s Office of Civil Rights [sic] has interpreted Title IX to require schools to evaluate reports of alleged sexual misconduct under a ‘preponderance of the evidence’ standard and that is the standard adopted by this Policy.” See William & Mary “Sexual Misconduct Policy and Procedure,” available at http://www.wm.edu/offices/deanofstudents/services/studentconduct/studenthandbook/sexual_misconduct_policy/index.php; University of Virginia “Policy and Procedures for Student Sexual Misconduct Complaints,” available at http://www.virginia.edu/sexualviolence/documents/sexual_misconduct_policy070811.pdf.

[4] Because of ties, U.S. News & World Report’s top 100 colleges include 103 institutions.

[5] Because of a tie, U.S. News & World Report’s top 10 colleges include 11 institutions.

[6] Brown University permitted a sexual assault conviction where there was simply a “reasonable basis.” This operates effectively as “guilty until proven innocent,” because the onus is on the accused to demonstrate that there is “no reasonable basis for believing that the alleged violation occurred.” See Brown University “Sexual Harassment Policy,” available at http://www.brown.edu/Administration/diversity/documents/SexualHarassmentPolicy.pdf.

[7] KC Johnson, The Star Chamber Comes to a Campus Near You, Minding the Campus: Reforming our Universities, June 9, 2011, available at http://www.mindingthecampus.com/forum/2011/06/the_starr_chamber_comes_to_a_c.html. Professor Johnson’s comments react to the new OCR rules in light of the falsely accused Duke lacrosse team.

[8] Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, January 2001, available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.

[9] See, e.g., OCR 1997 Guidance, available at http://www2.ed.gov/legislation/FedRegister/announcements/1997-1/031397b.html; OCR 2001 Guidance, available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.

[10] As discussed below, this new mandate raises legal questions pertaining to the Administrative Procedures Act.

[11] Dartmouth College and Massachusetts Institute of Technology were the only top-ten schools to use a “preponderance of the evidence” standard.

[12] As stated earlier, The College of William & Mary and the University of Virginia both have explicitly noted in their policies that “[t]he Department of Education’s Office of Civil Rights [sic] has interpreted Title IX to require schools to evaluate reports of alleged sexual misconduct under a ‘preponderance of the evidence’ standard and that is the standard adopted by this Policy.”

[13] Cornell UA Codes and Judicial Committee, Sufficiency of Evidence, available at http://assembly.cornell.edu/CJCComments/SufficiencyOfEvidence.

[14] Stanford University News Service, Unlikely allies oppose change in standard of proof, Nov. 19, 1991, available at http://news.stanford.edu/pr/91/911119Arc1050.html.

[15] Letter from Cary Nelson, President of the American Ass’n of University Professors to Russlynn Ali, Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Dep’t of Ed. (Aug. 18, 2011), available at http://thefire.org/public/pdfs/be5df1a71d0eae6b7b840a2ecdb01bb9.pdf.

[16] Letter from Gregory F. Scholtz, Associate Secretary and Director, American Ass’n of University Professors Dep’t of Academic Freedom, Tenure, and Governance to Russlynn Ali (June 27, 2011), available at http://thefire.org/public/pdfs/7ea041e49156306ba76cb62a4f8c6c65.pdf.

[17] Jason Jung, “University undergoing Title IX investigation,” Daily Princetonian, April 19, 2011, available at http://www.dailyprincetonian.com/2011/04/19/28314/.

[18] See 5 U.S.C. §553. An agency regulation or new interpretation of a regulation that does not satisfy the notice-and-comment requirements of the Administrative Procedures Act is rendered invalid, and the prior regulation is reinstated until the agency promulgates valid alternative regulation. See Abington Memorial Hospital v. Heckler, 750 F.2d 242 (3rd Cir. 1984); Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997).

[19] As of August 2011, schools ranked in the top 100 that had changed their standard to “preponderance of the evidence” since April 4, 2011, included Columbia University, Stanford University, the University of Chicago, the University of Notre Dame, Carnegie Mellon University, the University of Virginia, Pennsylvania State University, and the University of California, San Diego.

At first blush, the holding in Christian Legal Society v. Martinez [1]— that a public university may require its student groups to accept all students as voting members, eligible to run for leadership positions, without running afoul of the First Amendment—seems unremarkable. [2] After all, as the Supreme Court held, a policy that applies equally to all student organizations is “paradigmatically viewpoint neutral.” [3] Moreover, the University of California, Hastings College of the Law’s (“Hastings”) desire to teach tolerance and foster communication among students with differing viewpoints seems like a laudable reason for creating an “all-comers policy.” [4]

However, the reasoning employed by the majority in Martinez drastically altered the framework for analyzing expressive-association cases. First, and most importantly, the Court merged the expressive- association claim of the Christian Legal Society (“CLS”) student organization with its speech claim, essentially negating independent protection for CLS’s right to expressive association. The Court assessed the group’s speech and expressive-association claims using the forum analysis applicable to cases involving speech restrictions on government property. [5] The Court held that a burden on a student organization’s expressive association is constitutionally permissible if it is viewpoint neutral and reasonable in light of the purposes of the forum, using the test for speech claims in a limited public forum. [6] In doing so, the Court failed to appreciate that expressive association contains both speech and conduct elements that cannot be adequately safeguarded by applying the test applicable to speech rights alone.

Further, in analyzing whether Hastings’s policy was reasonable, the Court gave Hastings added deference in defining its academic mission because the university provided student organizations with financial support and facilities. [7] The Court noted that CLS’s ability to select members on the basis of belief would be constitutionally protected in society at large, but not when a university is lending the organization its facilities. [8] For the first time, the Court imported the concept of “subsidies” into a case involving student organizations, affording Hastings unprecedented latitude in its treatment of student organizations.

Finally, in reaching its conclusion, the Court erased the distinction—critical to expressive-association analysis—between invidious discrimination based on status or immutable characteristics and discrimination based on chosen beliefs and conduct. [9] This distinction is critical because although there is usually little to no expressive value in discrimination motivated by animus and made on the basis of race, gender, sexual orientation, or the religion into which an individual is born, an organization’s ability to select members based on commonly held beliefs central to the group’s purpose is fundamental to the right of expressive association.

This Article argues that student organizations’ right to expressive association at a public university must be preserved, even though student organizations operate within a limited public forum. [10] One way to safeguard expressive association in a limited public forum would be to apply a test that is slightly more deferential to the government than the “strict scrutiny” test applied to burdens on expressive association in society at large. [11] Another alternative is to modify the definition of viewpoint neutrality that applies in the speech context: Instead of simply assessing whether a university policy is viewpoint neutral from a speech perspective (i.e., whether it unconstitutionally targets certain viewpoints), courts must also examine whether a policy targets groups wishing to include or exclude those with a specific viewpoint.

The Article further explores how recognition of the distinction between status and belief or conduct should be imported into the conception of viewpoint neutrality when analyzing expressive- association cases in a limited public forum. Protecting a group’s ability to select members based on ideology, but not on status, is a coherent way to distinguish constitutionally protected association from unprotected discrimination in a limited public forum.

The Article begins in Part II with a discussion of the Supreme Court’s prior expressive-association cases that focuses on the Court’s prior treatment of the status/belief distinction. Part III discusses the ways in which Martinez departed from the approach of these cases. Part IV argues that the majority’s merging of free speech and expressive- association claims in a limited public forum, although possessing some appeal, is ultimately wrongheaded in the context of expressive association, and proposes amended tests to govern expressive association. Part V argues that, contrary to the majority opinion in Martinez, expressive association should protect the right to discriminate based on conduct or belief, but not on status. This Article explores the distinction between status and belief, and addresses two compelling criticisms against it—that it does not sufficiently protect minority groups from discrimination, and, on the other hand, that it does not sufficiently protect expressive association.

II. EXPRESSIVE ASSOCIATION AND COMPETING VALUES

According to the Supreme Court, “[w]hile the freedom of association is not explicitly set out in the [First] Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” [12] The right to form associations is fundamental to the important value of self-governance, which animates the First Amendment; indeed, one scholar has argued that “assembly, petition, and association are at least as central to the process of self-governance as is free speech and that assembly and petition were historically viewed as more fundamental to a politically functional society than speech.” [13] This is because of the important role associations have played in the creation and promotion of values and in the fomentation of political change. [14]

The Supreme Court’s freedom of association cases focus on three distinct but interrelated themes: the right of the individual to join an organization, [15] the intersection of freedom of association and the political process, [16] and the rights of the organization as an autonomous entity. [17]

The Supreme Court’s cases dealing with the autonomy of an organization are usually classified under the right to “expressive association,” which safeguards group members’ ability to associate with each other in order to engage in protected expression. [18] This includes a group’s right to include members and its right to deny membership to individuals an association wishes to exclude. [19] The ability to join voices to engage in collective speech not only facilitates expression, but also permits minority views to flourish despite “majoritarian demands for consensus.” [20]

The difficult expressive-association cases often pit a group’s right to associate for expressive purposes against important social values like equality and open democracy. Until Martinez, the Court balanced First Amendment rights with these values by ensuring that a group’s purpose was truly expressive and by distinguishing between status and belief.

A. The Early Cases

Perhaps because the Constitution does not explicitly enumerate freedom of association, the exact origins of the right are murky. [21] However, most scholars agree that the specific right to expressive association was first articulated in Roberts v. United States Jaycees. [22]

In Roberts v. United States Jaycees, [23] the Supreme Court addressed “a conflict between a State’s efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization.” [24] More directly, the Court addressed a conflict between the national United States Jaycees organization, whose bylaws permitted women to join only as non-voting “associate members,” and local Minnesota Jaycees chapters, who wanted to admit women as full voting members. [25] Wishing to revoke the local chapters’ charters, the national organization brought a declaratory judgment action to invalidate portions of the Minnesota Human Rights Act, which prohibited denying “any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.” [26] The Jaycees, a young men’s private social and civic organization, was subject to this public accommodations law [27] because it offered goods and services and “solicit[ed] and recruit[ed] dues-paying members based on unselective criteria.” [28]

The Supreme Court, with Justice Brennan writing for the majority, ultimately upheld this law against two strands of freedom of association—freedom of “intimate association,” which preserves close, intimate relationships upon which “individuals draw much of their emotional enrichment[,]” [29] and the “right to associate for expressive purposes[.]” [30] Justice Brennan described freedom of expressive association, implicated by the Minnesota law, as necessary to safeguard the other freedoms expressly enumerated in the First Amendment:

An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. [31]

The Court then acknowledged that requiring the Jaycees to accept women as full voting members effectuated a great “intrusion into the internal structure or affairs of an association . . . . [that] may impair the ability of the original members to express only those views that brought them together.” [32] However, the Court upheld the Minnesota law because it was “justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” [33] Eliminating gender discrimination and ensuring equal access to goods and services constituted a compelling state interest that was achieved through means that did not “impose[] any serious burdens on the male members’ freedom of expressive association.” [34]

By stating that admission of women as full members would not undermine the Jaycees’s ability to express its message, the Court took a first step towards drawing a line between a group’s desire to exclude members based on status (or immutable characteristics) and a group’s ability to select its membership based on chosen beliefs or conduct. According to the Court, the Minnesota law “requires no change in the Jaycees’ creed of promoting the interests of young men, and it imposes no restrictions on the organization’s ability to exclude individuals with ideologies or philosophies different from those of its existing members.” [35] Presumably, then, the Jaycees could exclude women who opposed the group’s philosophy of promoting the interests of only young men, but the Jaycees was not permitted to assume that women, based on their immutable characteristics, hold views that conflict with the organization’s purposes. [36]

In addition to distinguishing between status and belief, Roberts also took steps to erase the distinction between laws that penalize the exercise of associative rights and laws that simply deprive a group of benefits. According to Roberts, expressive association is implicated by laws that “impose penalties or withhold benefits from individuals because of their membership in a disfavored group[.]” [37] For this proposition, the Roberts Court cited the earlier case of Healy v. James, [38] perhaps the closest analogue to Martinez in the Court’s First Amendment jurisprudence.

In Healy, the Supreme Court held that the denial of recognition to the student organization Students for a Democratic Society (“SDS”) violated the associational rights guaranteed by the First Amendment because recognition conferred the ability upon SDS to use campus facilities and bulletin boards. [39] The Court in Healy noted that it must strike a balance between “the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process” and “the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.” [40] The Court began its legal analysis by repudiating the notion that “because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” [41] These protections included “the right of individuals to associate to further their personal beliefs.” [42]

The case arose when students at Central Connecticut State College applied to form a local chapter of SDS to discuss left-leaning politics and serve as “an agency for integrating thought with action so as to bring about constructive changes.” [43] SDS chapters at other colleges had been responsible for instigating civil disobedience and violence, but the college’s president had no evidence that this local chapter would use violent tactics. [44] The Supreme Court concluded that because this denial of recognition abridged the First Amendment as a prior restraint, “the burden was upon the College administration to justify its decision of rejection.” [45] According to the Court, “[t]he College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.” [46]

In rendering its decision, the Supreme Court overturned the lower courts’ judgment that denial of recognition did not infringe upon SDS’s associational rights. The district court and the court of appeals had held that non-recognition “abridged no constitutional rights” because the group could still meet to express its views outside of campus. [47] Thus, according to the lower courts, SDS had been denied only the “college’s stamp of approval.” [48] The Supreme Court, however, concluded that “[t]here can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes.” [49] Using logic that would later be discarded by the majority in Martinez, Justice Powell, writing for the majority, held that “the group’s possible ability to exist outside the campus community does not ameliorate significantly the disabilities imposed by the President’s action.” [50]

The Healy Court determined that the denial of the ability to use university facilities was an indirect burden on associational rights, even if an organization could organize itself outside of campus, because it amounted to the denial of benefits. [51] According to the Court, there were permissible and impermissible bases upon which to deny these benefits. [52] Healy and Roberts approached the denial of a benefit as the same type of burden on associational rights as a direct punishment—in stark contrast to the majority’s analysis in Martinez. [53]

B. Solidifying the Status/Belief Distinction

Several of the Supreme Court’s subsequent expressive-association cases solidified the principle that while the First Amendment protects an organization’s ability to limit its membership to those who share its ideology, this protection usually does not include the right to exclude potential members based on their immutable characteristics or status.

In New York State Club Ass’n v. City of New York, [54] the Supreme Court confronted a New York public accommodations law that applied to private clubs with 400 or more members, [55] similar to the one upheld in Roberts. [56] A consortium of 125 private clubs challenged the facial validity of the law. [57]

In holding that the New York law was not substantially overbroad, the Court deemed it significant that there was not yet a record of enforcement of the law and the consortium “ha[d] not identified those clubs for whom the antidiscrimination provisions [would] impair their ability to associate together or to advocate public or private viewpoints.” [58] Although the Court upheld the law, the majority opinion penned by Justice White went even further than Roberts in distinguishing status-based discrimination, which was not constitutionally protected, from discrimination on the basis of ideology or conduct:

On its face, Local Law 63 does not affect “in any significant way” the ability of individuals to form associations that will advocate public or private viewpoints. It does not require the clubs “to abandon or alter” any activities that are protected by the First Amendment. If a club seeks to exclude individuals who do not share the views that the club’s members wish to promote, the Law erects no obstacle to this end. Instead, the Law merely prevents an association from using race, sex, and the other specified characteristics as shorthand measures in place of what the city considers to be more legitimate criteria for determining membership. It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion. In the case before us, however, it seems sensible enough to believe that many of the large clubs covered by the Law are not of this kind. We could hardly hold otherwise on the record before us, which contains no specific evidence on the characteristics of any club covered by the Law. [59]

The necessary implications of this passage are twofold. First, although the Court found no constitutional infirmity with the New York law, its analysis would have been different if the law forbade private clubs from “exclud[ing] individuals who do not share the views that the club’s members wish to promote.” [60] Second, the Court might have found that the law, as applied to a particular club, violated the First Amendment if the group would “not be able to advocate its desired viewpoints nearly as effectively if it [could not] confine its membership to those who share the same sex, for example[.]” [61] Thus, even status-based discrimination might be protected by the First Amendment if a group could show that it was critical to its expressive advocacy.

Seven years later, in another case resembling Martinez, the Supreme Court confronted the distinction between an organization’s exclusion of gays and its right to reject a message that endorses gay rights. [62] In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, [63] the Court upheld the right of the South Boston Allied War Veterans Council, an association of veterans who received a permit from the City of Boston to organize the annual St. Patrick’s Day parade, to exclude from participation an organization of gay, lesbian, and bisexual descendants of Irish immigrants who wished to express pride in both their Irish and their gay identities. [64] This organization, known as GLIB, sued the Council for denying its application to participate under Massachusetts law prohibiting discrimination in public accommodations. [65]

The Veterans Council had been given authority by the mayor in 1947 to conduct the parade, which drew up to one million spectators, and the city had for many years prior to the lawsuit allowed it to use its official seal, in addition to providing printing services and funding. [66] However, the lower courts had characterized the parade as purely private, and GLIB did not appeal this finding. [67]

Justice Souter’s majority opinion began its legal analysis by categorizing the parade as protected expressive activity and GLIB’s requested “participation as a unit in the parade [as] equally expressive.” [68] The Court also found that the Massachusetts public accommodations law, with its “venerable history” of eradicating discrimination in public life, [69] did not generally violate the First Amendment, as it “[did] not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds.” [70] However, the Court could not countenance the law as applied to require the parade organizers to accept marchers with a particular message of gay pride and tolerance:

In the case before us, however, the Massachusetts law has been applied in a peculiar way. . . . Petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. Since every participating unit affects the message conveyed by the private organizers, the state courts’ application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts’ application of the statute had the effect of declaring the sponsors’ speech itself to be the public accommodation . . . . But this use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. [71]

The Court thus found it significant that the Council was not seeking to exclude gays from marching in its parade. If that were the case, Massachusetts nondiscrimination law may have been constitutionally applied to prevent status-based discrimination. [72] However, applying nondiscrimination law to prevent the Council from discriminating on the basis of certain viewpoints meant turning the Council’s speech (and not just its services) into a public accommodation—a result antithetical to the First Amendment.

In holding that Massachusetts could not apply its public accommodation law against the Council, the Court distinguished New York State Club Ass’n because, in that case, “although the association provided public benefits to which a State could ensure equal access . . . compelled access to the benefit, which was upheld, did not trespass on the organization’s message itself.” [73] In contrast, forcing the Council to accept GLIB into its parade would distort the Council’s expression, even if the Council’s message was not entirely coherent. According to the Court, “[r]ather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent’s expression in the Council’s eyes comports with what merits celebration on that day.” [74]

The Court in Hurley approached the issue of whether excluding people with certain views would dilute an organization’s message with significant deference to the organization and its conception of its message. [75] Two of the Court’s most recent expressive-association cases confront the issue of dilution of message and the status/belief distinction with more precision and detail and with differing results.

C. Expressive Association and the Dilution of a Group’s Message

In Boy Scouts of America v. Dale, [76] the Supreme Court again addressed a state’s application of its public accommodations law against an expressive-association challenge. This time, the Court reversed the New Jersey Supreme Court’s interpretation of the state’s public accommodations law, which prohibited “discrimination on the basis of sexual orientation in places of public accommodation.” [77] According to the lower court, this law compelled the Boy Scouts of America, which “assert[ed] that homosexual conduct is inconsistent with the values it seeks to instill[,]” to accept James Dale, an exemplary Boy Scout whose adult membership was revoked after he was quoted in a newspaper discussing the need for gay teens to have active role models. [78]

The Supreme Court, with Chief Justice Rehnquist penning the majority opinion, held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” [79] In order to foster a diversity of views and protect minority expression, laws that infringe upon this freedom are subject to strict scrutiny, where a law may survive scrutiny only if it is “adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” [80]

The Dale majority found that the Boy Scouts engaged in expressive association because they sought to instill values through speech, and by example, in their members. [81] The Boy Scout mission statement explained that a Boy Scout should be “morally straight” and “do [his] duty to God and [his] country.” [82] Nowhere in the Boy Scouts’s mission statement was sexual orientation mentioned, but position statements promulgated by the Boy Scouts claimed that “homosexual conduct” is inconsistent with the Boy Scouts’s mission. [83]

In holding that the Boy Scouts’s expression would be altered by the forced inclusion of Dale, the Court focused on the fact that Dale is openly gay, and that the Boy Scouts are entitled to communicate certain messages through example, instead of directly addressing topics. [84] Chief Justice Rehnquist wrote:

We must then determine whether Dale’s presence as an assistant scoutmaster would significantly burden the Boy Scouts’ desire to not “promote homosexual conduct as a legitimate form of behavior.” As we give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its expression. That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have “become leaders in their community and are open and honest about their sexual orientation.” Dale was the co-president of a gay and lesbian organization at college and remains a gay rights activist. Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior. [85]

This portion of the Court’s opinion is significant because, as Dale alleged, the Boy Scouts do accept heterosexual members who vocally oppose the Boy Scouts’ policy on gay scout leaders. [86] Thus, the Court protected the right of the Boy Scouts to treat gays differently than heterosexuals, but only where prospective or current members from the LGBT [87] community also engaged in speech or conduct that would impair the Boy Scouts’ mission. Going further than Hurley, which stressed that the parade organizers did not discriminate on the basis of gay status at all, the Dale Court relied on the fact that expressive association contains both speech and conduct elements, such that the mere presence of certain individuals may distort a group’s message. [88]

As a result, the Dale majority refused to apply the more deferential test used in the free speech context for “expressive conduct” to the Boy Scouts’ expressive-association claim. [89] In United States v. O’Brien, the Supreme Court had used an intermediate level of scrutiny to determine the constitutionality of a statute that regulates conduct but has some effect on protected speech—a prohibition on the destruction of draft cards—and thus precluded the symbolic burning of a draft card for purposes of protest. [90] The Dale Court distinguished O’Brien and refused to apply its test because “[a] law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey’s public accommodations law directly and immediately affects associational rights . . . .” [91]

This distinction is not entirely satisfying; the New Jersey law applied only to conduct on its face, and burdened associational rights only in specific instances. [92] By deeming O’Brien inapplicable, the Court, in essence, created a stricter standard applicable to expressive association than to expressive conduct. The Supreme Court may have recognized that rules regulating conduct have a more potent effect on associational rights than on speech rights, and thus the Court took measures to ensure that associational rights were not subject to the same tests for constitutionality as expressive conduct, like burning a draft card.

In contrast to the deference given to the Boy Scouts to exclude members in shaping its own message, in a later case the Supreme Court was less willing to accept that associational rights were infringed when a law did not control membership, but required law schools to “interact with” and provide some support services for those it wished to exclude. [93] In Rumsfeld v. Forum for Academic & Institutional Rights, the Court held that a coalition of law schools’ expressive-association rights were not violated by the Solomon Amendment, [94] a federal law mandating that universities either allow military recruiters onto their campuses or forgo millions of dollars in federal funding, effectively compelling them to allow the military to recruit on their campuses. [95] The law schools argued that the Solomon Amendment infringed on their right against compelled speech and their right to expressive association because the military’s practice of excluding gays meant that they could not enforce their nondiscrimination policies. [96] In this case, therefore, the entity invoking the First Amendment was also the entity championing values of equality.

A unanimous Court first rejected the law schools’ claim that the Solomon Amendment unconstitutionally regulated the schools’ speech and expressive conduct. [97] Chief Justice Roberts distinguished O’Brien on the grounds that the act of excluding military recruiters did not communicate an obvious message, but became expressive only by speech accompanying that action. [98] According to the Court, “[t]he fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.” [99]

The Court also rejected the law schools’ expressive-association argument—that their ability to “express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools’ obligation to assist them.” [100] It is important to note that, again, the Court used separate standards to assess the schools’ free speech/expressive-conduct claims and their expressive-association claim. In the context of the expressive-association claim, the Court distinguished Dale by holding that allowing military recruiters to visit a law school for a short time in order to hire students does not mean that the recruiters are actually “associat[ing]” with the law school or that the law school is being forced “to accept members it does not desire.” [101] According to the Court, citing to Dale “overstates the expressive nature of [the law schools’] activity and the impact of the Solomon Amendment on it[.]” [102] Because the law schools were not actually required to accept new members, the law schools’ self-determination that their message opposing sexual orientation discrimination could not be conveyed if the military was permitted access to campus was deemed insufficient by the Court. [103]

The Court’s approach to expressive association, as evidenced by the cases in this section, has been deferential to a group’s view of its own message and purpose when confronting regulations that affected a group’s ability to select its membership. The Court has also been much more solicitous and protective of expressive association when an organization wished to exclude those who did not share its beliefs, beliefs around which groups must be permitted to organize, as opposed to when an organization excluded prospective members based on immutable characteristics.

This approach was drastically altered by the Court’s recent decision in Christian Legal Society v. Martinez. [104] In Martinez, the Court with little fanfare or acknowledgement erased both the distinction between protections for free speech and protections for freedom of association, and the distinction between involuntary status and chosen beliefs or conduct.

III. MARTINEZ’S SUBTLE SHIFTS

The Court’s most recent expressive-association case examined whether a university policy requiring all student organizations to allow all students to be voting members and to run for leadership positions violated the students’ freedom of expressive association. [105] This issue was framed by the majority in Martinez as whether the University of California, Hastings College of the Law, a public law school, could “condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students[.]” [106] From the outset, the Court wished to distinguish this case as one involving university subsidization and sought to depart from its expressive-association jurisprudence.

A. Background

Martinez came to the Court after a decade of clashes between Christian student groups and their universities. Between 1999 and 2000, Christian groups at many universities were derecognized or threatened with derecognition because of the organizations’ desire to limit membership to those who adhered to their beliefs and practiced their preferred conduct. [107] These clashes were sometimes resolved through litigation, [108] but never considered by the Supreme Court until the conflict between Hastings and its Christian Legal Society in Martinez.

Officially recognized student groups at Hastings can seek financial assistance from the law school to hold events, and are also permitted to use campus facilities, bulletin boards, e-mail lists, and Hastings’s name and logo. [109] To receive these benefits, student groups must abide by Hastings’s policies, including its nondiscrimination policy. [110] Like many public accommodations laws, including California’s, [111] this policy prohibits student groups from discriminating “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” [112] According to the Supreme Court, both parties stipulated that Hastings applied this nondiscrimination policy as an “all-comers policy,” meaning that all student groups were required to “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.” [113]

The Christian Legal Society, an association of Christian law students, was denied recognition based on Hastings’s all-comers policy because, according to Hastings, CLS’s bylaws “barred students based on religion and sexual orientation.” [114] CLS sought an exemption from Hastings’s nondiscrimination policy so that it could limit its group to those whose beliefs reflected the group’s core ideology. [115] Specifically, CLS believed that “sexual activity should not occur outside of marriage between a man and a woman[,]” and CLS wanted to only elect leaders who espoused the views articulated in CLS’s “Statement of Faith.” [116] When its request for an exemption was denied, CLS sued Hastings, claiming that the denial of its recognition violated its rights to free speech, expressive association, and free exercise of religion. [117]

B. Importation of Forum Analysis

In analyzing CLS’s claims, Justice Ginsburg first executed a major legal maneuver. Instead of analyzing CLS’s free speech and expressive- conduct claims separately from its expressive-association claim, the Martinez majority conflated these claims. This conflation ignored the fact that, in prior cases, the Court explicitly analyzed an organization’s speech claims and expressive-association claims independently, using separate lines of jurisprudence. [118] According to the Court, CLS’s “expressive-association and free-speech arguments merge” because “who speaks on its behalf, CLS reasons, colors what concept is conveyed[.]” [119] Therefore, it “makes little sense to treat CLS’s speech and association claims as discrete.” [120] This reasoning, however, could apply to any organization’s expressive-association claim.

The Court cited only one case to support its conflation of speech with expressive association—Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley. [121] Protective of the First Amendment, the Court held that certain regulations may infringe on both the right to expression and the right to association because these rights are interrelated. [122] The Berkeley Court concluded that a California ordinance limiting contributions to organizations formed to support or oppose ballot initiatives “plainly contravenes both the right of association and the speech guarantees of the First Amendment.” [123] However, Berkeley never held or implied that speech and associational rights cannot also be analyzed separately, as the Court had done in its line of expressive- association cases, and never speculated about whether a regulation can infringe upon freedom of association without impairing freedom of speech.

Once the Martinez Court determined that CLS’s speech and association claims merged, it assessed the all-comers policy’s burden on expressive association using the forum analysis applicable to speech restrictions on government property. [124] Instead of applying strict scrutiny to burdens on expressive association, as articulated in Roberts and Dale, Justice Ginsburg applied the much more deferential level of review used for restrictions impacting speech in limited public forums. [125] A limited public forum is established when the government opens its property to a limited class of speakers or for discussion of specific topics to promote the exchange of ideas. [126] Speech restrictions in this type of forum are constitutional, so long as they are reasonable and viewpoint neutral. [127]

Applying the relatively deferential limited public forum test in an especially deferential way, [128] the Court upheld Hastings’s all-comers policy, deeming it both viewpoint-neutral and reasonable. [129] In conducting its analysis, the Martinez Court imported another concept foreign to expressive-association jurisprudence, and also foreign to its cases involving limited public forums at universities—the idea that student groups have fewer First Amendment rights when a university lends them financial support or the use of its facilities.

C. Deferential Review for Universities Wielding Carrots

After merging CLS’s speech and expressive-association claims, the Court further justified applying the deferential test relevant to limited public forums by stressing that Martinez involved the denial of benefits, including monetary support and the use of Hastings’s facilities, instead of a direct regulation prohibiting membership limitations. [130] According to the majority,

[T]his case fits comfortably within the limited-public-forum category, for CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive- association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out. [131]

The Supreme Court’s earlier expressive-association cases did not indicate that withholding benefits or “dangling the carrot of subsidy” should be distinguished from “wielding the stick of prohibition.” [132] In fact, some of the Court’s earlier expressive-association cases explicitly blurred the distinction between direct and indirect burdens on expressive association. [133] In Roberts, for example, the Court held that expressive association is burdened by laws that “impose penalties or withhold benefits from individuals because of their membership in a disfavored group[.]” [134] Yet the newfound emphasis on this distinction in Martinez—and the extra deference given to universities as a result— permeated the Court’s application of the limited-public-forum test.

First, the Court found that Hastings’s all-comers policy was reasonable in light of the purpose of the forum. [135] The Court determined that Hastings reasonably believed that “the . . . educational experience is best promoted when all participants in the forum must provide equal access to all students[,]” [136] and deferred to Hastings’s view that student organizations are intended to promote “tolerance, cooperation, and learning.” [137] Although these may be laudable values for a school to promote, the Court overlooked its categorization of the student organizational forum in prior cases as promoting and encouraging a diversity of viewpoints, especially minority viewpoints, to flourish. [138] The Court also overlooked the contradiction inherent in establishing a forum for students to organize around shared interests and ideologies while prohibiting students from limiting their groups to those who subscribe to those interests and ideologies. [139] In fact, Justice Kennedy’s concurring opinion recognized the tension between facilitating a diversity of viewpoints and promoting tolerance. [140] Kennedy acknowledged that “[b]y allowing like-minded students to form groups around shared identities, a school creates room for self-expression and personal development[,]” but nevertheless believed that this result undermined what Hastings described as its reason for creating the forum—to increase interactions between students of different beliefs. [141]

The Court, in analyzing the reasonableness of the all-comers policy, relied heavily on the fact that Hastings was “subsidizing” student organizations. [142] According to the Martinez majority, Hastings could reasonably “decline to subsidize with public monies and benefits conduct of which the people of California disapprove.” [143] Yet the Supreme Court had never before, in a case involving student organizations, given added deference to universities because student organizations are subsidized. [144] Of course, the majority opinion acknowledged that Hastings could not similarly decline to subsidize organizations with viewpoints disapproved by California voters, [145] due to the speech protections afforded in the limited-public-forum test. But discrimination in selecting an organization’s members constituted conduct, and the Court did not separately assess the constitutionality of this conduct using its expressive-association jurisprudence. [146] Had it done so, the Court would have examined the burden placed on CLS’s associational rights by a policy affecting its membership. Specifically, it would have denied CLS the ability to restrict its group to members who share a common belief and would have determined whether that burden was justified by governmental interests.

The Court also gave considerable deference to Hastings in the face of CLS’s argument that an all-comers policy left student organizations susceptible to “hostile takeovers,” whereby those opposing a group’s message will join the group in order to undermine the group’s speech or fulfillment of its mission. [147] According to the Court, “[i]f students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.” [148] The import of this statement is unclear, but it appears that the Court simply trusted Hastings to protect minority viewpoints in the face of any potential developments—a remarkable display of deference given the First Amendment rights at stake. [149] This extraordinary level of deference and solicitude also impacted Justice Ginsberg’s analysis when CLS questioned the viewpoint neutrality of the all-comers policy and in the Court’s blurring of the distinction between status and belief.

D. Viewpoint Neutrality and the Status/Belief Distinction

The Court found Hastings’s all-comers policy to be viewpoint neutral under the speech test for viewpoint neutrality in a limited public forum. As the Martinez majority noted, the all-comers policy applied to all student groups regardless of their views. [150] Groups are free to express discriminatory views so long as they do not engage in discriminatory conduct. [151] Applying the free speech test associated with “expressive conduct,” [152] the Court also found that the all-comers policy was “justified without reference to the content [or viewpoint] of the regulated speech.” [153] Under these tests, created for the free speech context, Hastings’s policy is viewpoint neutral. [154] The Court, however, overlooked the fact that forced exclusion or inclusion of members with beliefs antithetical to an organization—which constitutes conduct, not speech—is one of the paradigmatic burdens on expressive association. [155] Free speech protections cannot safeguard this conduct from governmental intrusion.

Free speech protections also do not recognize the distinction, critical to protecting expressive association, between discriminating on the basis of involuntary status and limiting membership to students of chosen beliefs or conduct. The Court rejected CLS’s argument that a policy would be constitutional if it permitted “exclusion because of belief but forb[ade] discrimination due to status.” [156] According to Justice Ginsburg, “that proposal would impose on Hastings a daunting labor . . . . [of] determining whether a student organization cloaked prohibited status exclusion in belief-based garb[.]” [157] Yet in the expressive- association context, the Supreme Court had never before concerned itself with the difficulty of policing the distinction between status-based and belief-based selection, and, indeed, has hinged its opinions on this distinction in the past. [158] The Court’s assertion that “[o]ur decisions have declined to distinguish between status and conduct” cites to Fourteenth Amendment rights of substantive due process and equal protection. [159] These cases are profoundly distinct because, in the Fourteenth Amendment context, the state is the entity criminalizing belief-based behavior that may be a pretext for discriminating on the basis of status. [160] In the expressive-association context, private groups, who are not prohibited from discriminating by the Constitution and who do not possess the power of the state, often wish to select members who share their core values for the purposes of expression, not discrimination.

After denying CLS’s expressive-association claim, the Court left open for review the question of whether Hastings applied its all-comers policy in an unconstitutionally selective way to penalize certain groups. According to CLS, “[t]he peculiarity, incoherence, and suspect history of the all-comers policy all point to pretext.” [161] The Martinez majority remanded this issue for the lower courts to address in the first instance. [162]

The Court’s ultimate holding—that Hastings’s all-comers policy was reasonable and viewpoint neutral—is defensible if one accepts that Hastings applied the policy equally to all student groups, and grants Hastings its contention that the purpose of student organizations is to promote “tolerance, cooperation, and learning.” However, there is a strong argument that it is unreasonable to establish a forum for expression but not protect an organization’s ability to safeguard its expression when choosing members. As scholars have argued, it defies logic to establish a forum where student groups can have particular religious or political identities but then cannot select members or leaders based on those identities. [163] The Court overlooked the inherent contradictions in fostering expressive associations through an all-comers policy.

Moreover, to reach its holding that Hastings’s policy was reasonable and viewpoint neutral, the Court essentially negated CLS’s freedom of expressive-association claim by treating it as coterminous with a free speech or expressive-conduct claim. The Court also gave added deference to universities by focusing heavily on the university’s provision of facilities and official recognition, [164] and further erased the distinction between status and belief. The next section examines these choices and their implications for expressive association.

IV. THE DANGER OF MERGING SPEECH AND EXPRESSIVE ASSOCIATION IN A LIMITED PUBLIC FORUM

As detailed in the previous section, the major legal development in Martinez was the Court’s decision to merge its analysis of speech and expressive-association claims when made by participants in a limited public forum. The decision to apply the “more lenient test governing ‘limited public forums’” to CLS’s expressive-association claim was likely outcome-determinative, [165] yet was accompanied by scant authority or explanation of how the expressive-association doctrine will be affected. [166] Although there are legitimate reasons for merging speech and expressive-association claims in a limited public forum, [167] the test affords no independent protection for the right of expressive association. To properly respect both expressive association and the boundaries of a limited public forum, the Court should preserve separate tests for speech and association claims.

A. The Nullification of Associational Rights

According to the majority in Martinez, when the “intertwined rights” of free speech and expressive association both arise in a limited public forum, “it would be anomalous for a restriction on speech to survive constitutional review under our limited-public-forum test only to be invalidated as an impermissible infringement of expressive association.” [168] Further, “the strict scrutiny we have applied in some settings to laws that burden expressive association would, in practical effect, invalidate a defining characteristic of limited public forums—the State may reserv[e] [them] for certain groups.” [169] Perhaps the Court is correct to distinguish between burdens on expressive association in a limited public forum and those relevant to the public sphere, or a traditional public forum. [170] But even accepting that forum analysis is applicable to expressive-association claims, [171] it does not follow that a restriction that is constitutional as a matter of free speech principles cannot unconstitutionally burden expressive association. By merging CLS’s speech and expressive-association claims, the Court left the right of expressive association with no independent protection in a limited public forum. [172]

The viewpoint-neutrality test governing restrictions affecting speech in a limited public forum does not translate well as a means to safeguard associational rights. Viewpoint neutrality, as applied to pure expression, serves a speech-protective function. In the free speech context, safeguarding viewpoint neutrality ferrets out impermissible governmental motives in restricting speech. [173] As some scholars have argued, the purpose of viewpoint neutrality is to prevent the government from “distort[ing] debate in a way that games the system (here, the marketplace of ideas) to achieve a preordained goal: The rejection of one perspective in favor of the opposing point of view.” [107] When pure speech is involved, viewpoint neutral regulations protect minority viewpoints from being targeted by the government, and “[t]he burden on speech created by viewpoint-neutral regulations will, at least formally, fall in a more evenhanded way on competing speakers and ideas.” [175]

However, the test for viewpoint neutrality does not protect the right of expressive association in a meaningful way. For example, Hastings’s all-comers policy, though upheld as a viewpoint-neutral regulation, essentially nullifies the expressive-association rights of all student groups. Hastings’s all-comers policy permits student groups to select members based on “neutral, generally applicable” membership criteria, like requiring members “to pay dues, maintain good attendance, refrain from gross misconduct, or pass a skill-based test[.]” [176] But student groups are forbidden from limiting membership to those who share their views or requiring members to conform their behavior to the group’s values. [177] The ability to select members based on ideology in order to promote a group’s expression, one of the primary purposes of the right to expressive association, is entirely eroded by Hastings’s policy, viewpoint neutral or otherwise. [178]

Further, the viewpoint-neutrality test, which allows the government to set up a forum for speech on certain subjects without manipulating the viewpoints expressed in this forum, does not equally protect student groups from the state manipulating their right to expressive association, and, in so doing, undermining their speech. A university policy denying funding to organizations with liberal views would be viewpoint discriminatory from a speech perspective and therefore unconstitutional. However, a university policy requiring that all student groups elect a Republican student to a leadership role is technically viewpoint neutral because it applies to all student groups regardless of each group’s viewpoint. Yet, it is clear that the expressive-association rights of those with a specific viewpoint (such as student groups with views aligned with the Democratic Party or political liberals) are particularly targeted, and that their speech would suffer as a result.

Similarly, a nondiscrimination policy prohibiting student organizations from limiting membership on the basis of religious beliefs is viewpoint neutral from a speech perspective, as it applies to all groups. However, this policy limits the expressive association only of groups with a particular viewpoint—religious groups. [179] As a matter of free speech law, a university policy that denies funding to student organizations whose publications “primarily promote[] or manifest[] a particular belief in or about a deity or an ultimate reality” is considered viewpoint discriminatory. [180] The Supreme Court deemed such a university policy unconstitutional, even though it applied to speech from an atheistic perspective, because religion provides “a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” [181] It seems perverse then, that universities can target the associational rights of student groups with a religious perspective (atheist or deist), whose speech they cannot burden, by mandating that student organizations cannot select their members on the basis of a particular religious perspective.

Just as “Hastings’ all-comers requirement draws no distinction between groups based on their message or perspective[,]” [182] a university policy affecting the membership requirements of all student groups can be considered viewpoint neutral from a speech perspective while offering no protection from policies that undermine the expressive-association rights of groups with only certain viewpoints. [183]

The primary reason that protections for expressive association cannot be merged with speech protections is that expressive association contains both speech elements (the expression of the group and its members) and conduct elements (the act of excluding or including members in order to promote that expression). Thus, the viewpoint- neutrality test governing speech restrictions in a limited public forum must be modified in recognition of the hybrid nature of expressive association.

B. An Independent Test for Expressive Association

When assessing a student organization’s free speech claim, the limited-public-forum test can remain intact. As in Martinez, a regulation affecting speech would be upheld if it is viewpoint neutral and reasonable in light of the purposes of the forum. [184] To protect a student organization’s right to expressive association, however, a separate standard is needed that appreciates the differences between speech rights and associational rights.

One way to preserve expressive association as an independent right in a limited public forum would be to revive the jurisprudence from cases like Roberts and Hurley, but apply a greater degree of deference to the government (and less scrutiny to its regulation) in a limited public forum. Burdens on expressive association in a limited public forum could be upheld if a university policy is justified by a substantial reason, unrelated to the suppression of ideas, and is narrowly tailored to achieve the university’s reasonable goal. This test borrows language from “intermediate scrutiny” tests applicable to other constitutional rights. [185]

The all-comers policy in Martinez is susceptible to invalidation under this test—the reasons justifying the policy appear, to some scholars, dubious and incoherent, [186] and the policy is not a narrowly tailored way of achieving the university’s nebulous goals of tolerance and cooperation. The all-comers policy is also extremely burdensome to expressive association, and the university’s goals could be achieved in a much less onerous way. [187]

Another alternative is to follow the Martinez Court’s lead in using the test applicable to speech claims in a limited public forum, but modify the definition of viewpoint neutrality when assessing an expressive- association claim. In this context, viewpoint neutrality should prohibit restrictions on student groups that target the inclusion or exclusion of certain viewpoints. For example, a nondiscrimination policy preventing organizations from selecting their members based on shared religious beliefs (i.e., one which prohibited discrimination on the basis of religion) would be unconstitutional because it targets groups who wish to limit membership to specific religious views, thus affecting their expressive purposes. [188] A university policy prohibiting student organizations from excluding members who belong to particular political ideologies would also be infirm. [189] Thus, a policy mandating that students not exclude, for example, students with particularly liberal views would certainly be aimed at a viewpoint-based exclusion and therefore unconstitutional. However, a nondiscrimination policy preventing organizations from selecting members on the basis of race or gender would be constitutional under this framework because race and gender are not particular viewpoints that can be targeted or suppressed through laws burdening expressive association. [190]

In essence, a viewpoint-neutral policy affecting expressive association would ensure that groups are not targeted for having a particular expressive purpose. Hastings’s all-comers policy, at issue in Martinez, might still be considered viewpoint neutral. The policy prevents exclusion of all viewpoints equally, save for the substantial evidence that it was enacted to prevent groups like CLS from limiting membership to those who share its religious views. [191]

Crafting a test to apply to expressive association in a limited public forum allows for independent protection of associational rights. However, not everyone believes that associational rights deserve independent protection in a limited public forum. Professor Eugene Volokh, in an article cited by the majority in Martinez, argues against independent protection for associational rights in a limited public forum. [192] Volokh appreciates that, even in a limited public forum, the government may not refuse to fund an organization based on its viewpoint (even if that viewpoint is racist, sexist, or anti-gay), but contends that a university may refuse to fund or provide facilities to organizations that exercise their associational rights in ways objectionable to the school (i.e., CLS’s exclusion of those who refuse to disavow premarital sex). [193]

Volokh’s argument hinges upon this idea that there is generally “no duty to subsidize” the exercise of constitutional rights, with one of the few exceptions being that the government may not establish a forum for speech and then discriminate against a speaker based on his viewpoint. [194] His article explores the issue of whether “courts should develop an analogous exception barring the government from discriminating based on a group’s expressive association decisions[,]” but ultimately concludes, without much analysis, that this analogous exception should not be recognized. [195]

Contrary to Volokh’s conclusion, an analogous exception should be recognized. Because speech and expressive association are so intimately intertwined, a university could undermine a group’s speech without violating free speech protections by targeting the group’s ability to select like-minded members. [196] Moreover, in the student organizational context, the Court has never considered a university’s lending of its facilities or funding to be a governmental subsidy in the same way it has in other contexts, and for good reason. When a university sets up a forum for speech, that speech is considered entirely private and not attributable to the school. Especially in this context, a student organization’s right to expressive association merits protection, just as much as its right to free speech.

C. Debunking the Subsidies Myth

It is undeniable that universities like Hastings, in establishing student organizations, provide facilities and often some modicum of funding to student groups. Moreover, the student organizational forum is considered to be a limited public forum, and First Amendment restrictions are subject to less exacting scrutiny than in a traditional public forum. [197] The forum created for student organizations, however, is one dedicated to the promotion of a diversity of views, [198] and the Court has unequivocally considered student organizations to engage in private speech. [199] Although universities may expend resources, they do not “sponsor” student organizations in any meaningful way. Especially given that student organizations comprise an array of diverse and conflicting views, it would be inconceivable to attribute all of these views to the university. Too often, the term subsidy is conflated with the concept of sponsorship.

Using the term “subsidy” to describe the modest provision of facilities and funding provided by universities led the Martinez Court, and especially Justice Stevens in concurrence, to incorrectly conflate subsidy with sponsorship and believe that the university’s imprimatur is placed on student groups. [200] This confusion afforded universities greater latitude in controlling student groups. [201] Even scholars have difficulty viewing CLS’s speech as purely private due to the university’s provision of facilities and funding. [202] According to the Martinez Court, one reason that Hastings’s all-comers policy is reasonable is because “Hastings’ policy, which incorporates—in fact, subsumes—state-law proscriptions on discrimination, conveys the Law School’s decision to decline to subsidize with public monies and benefits conduct of which the people of California disapprove.” [203] Yet the Court, invoking the concept of subsidies in order to give the university more deference, [204] never explains why it is permissible for a university to create an all-comers policy and thereby decline to “subsidize” an organization’s exercise of its right to expressive association, but impermissible for a university to decline to “subsidize” groups whose speech the university finds objectionable. [205]

No other Supreme Court case addressing student organizations has considered them “subsidized” by universities or used this term to give deference to universities when analyzing the constitutionality of university policies. [206] Further, as one scholar commented, in any limited public forum, “[c]onditions on benefits and fora do not differ as sharply from direct regulation of private conduct as the ‘carrots v. sticks’ dichotomy implies.” [207] Given that universities cannot condition access to their facilities in ways that manipulate the viewpoints expressed by their student organizations, a university should also be precluded from burdening expressive association as a way of limiting unpopular expression.

Citing Professor Volokh’s article entitled Freedom of Expressive Association and Government Subsidies, [208] the Martinez Court noted that “[s]chools, including Hastings, ordinarily, and without controversy, limit official student-group recognition to organizations comprising only students—even if those groups wish to associate with nonstudents.” [209] But Volokh attempts to derive too much from this argument; acknowledging that universities may constitutionally preclude nonstudents from joining student groups does not in turn mean that all burdens on freedom of expressive association are constitutional. Instead, the constitutionality of a university’s burden on expressive association should be tested using a modified viewpoint-neutrality test that permits universities to place limitations on student organizations without targeting the inclusion or exclusion of certain viewpoints. [210]

V. THE NECESSARY DIFFICULTIES OF THE STATUS/BELIEF DISTINCTION

As explained in the previous sections, the Martinez majority erased the previously recognized distinction in the expressive-association jurisprudence between discrimination on the basis of status and selection on the basis of belief. [211] This distinction is critical, however, to preserving the right to expressive association in a limited public forum, where private organizations should be entitled to limit membership to those who share their views. [212] As a matter of policy, society should also recognize the difference between truly invidious forms of discrimination, based on immutable characteristics, and discrimination on the basis of shared values, a central feature of associational rights. The final section of this Article explores the status/belief distinction and address the criticisms of this distinction.

A. “Good” and “Bad” Forms of Discrimination

In its pre-Martinez cases, the Supreme Court struck a delicate balance between liberty interests protected by the Constitution and society’s interest in equality and ensuring equal access to goods and services. These cases emphasized that a private organization’s exclusion of those who oppose the group’s views should be constitutionally protected because it preserves the expressive purposes of the organization. [213] In contrast, exclusion of individuals based on immutable characteristics, or status, is typically not necessary to safeguard expressive association. [214] The distinction between selection based on belief or conduct rather than status separates a “good” kind of discrimination from the kind that should be the target of antidiscrimination laws—that on the basis of qualities that cannot be altered, such as race, gender, ethnicity, or sexual orientation.

Hastings’s all-comers policy wished to “allow any student to participate, become a member, or seek leadership positions, regardless of [her] status or beliefs,” [215] as if beliefs are an immutable trait upon which it would be unfair to deny a student membership. The Martinez majority seized upon this conflation in order to uphold Hastings’s laudable desire to promote tolerance and cooperation among its students. [216] But, in oral argument, Chief Justice Roberts, who joined the dissenting opinion, stressed the difference between protected and unprotected forms of discrimination.

[G]ender or race is fundamentally different from religious [belief]. Gender and race is [sic] a status. Religious belief—it has to be based on the fundamental notion that we are not open to everybody. We have beliefs, you have to subscribe to them. And we’ve always regarded that as a good thing. That type of exclusion is supported in—in the Constitution. The other types of exclusion are not. [217]

Chief Justice Roberts propounded the view that a private organization’s selectivity on the basis of belief is a positive quality, something to be promoted, even if it may be framed under the rubric of discrimination on the basis of religion. [218] Selectivity on the basis of belief allows groups to organize around a coherent viewpoint, and enables minority views to survive despite majoritarian pressure. [219] Associating with like-minded individuals to exchange views and amplify one’s voice, which necessarily involves some form of “discrimination,” is at the heart of expressive association. [220]

Hastings initially denied recognition to CLS for discriminating not only on the basis of religion, but also on the basis of sexual orientation, an immutable characteristic. [221] In fact, a pre-Martinez case from the Seventh Circuit, which upheld the expressive-association claim of a CLS chapter at Southern Illinois University School of Law, [222] found that the University’s CLS group did not discriminate based on sexual orientation, but only on the basis of belief. [223] According to the Seventh Circuit, CLS “interprets its statement of faith to allow persons ‘who may have homosexual inclinations’ to become members of CLS as long as they do not engage in or affirm homosexual conduct.” [224] Moreover, only “heterosexual persons who do not participate in or condone heterosexual conduct outside of marriage may become CLS members[.]” [225] The Seventh Circuit acknowledged the importance of the status/belief distinction. [226] It held that “CLS’s membership policies are thus based on belief and behavior rather than status,” and enjoined the application of Southern Illinois University School of Law’s nondiscrimination policy against the group. [227]

Professor Eugene Volokh, in his article cited by the Martinez majority, also argued that a group’s exclusion of individuals who refuse to condemn homosexuality does not constitute status-based sexual orientation discrimination. [228] According to Volokh, this exclusion would instead be “based on holding a certain viewpoint that secular people could hold as well as religious ones.” [229] Of course, the group would have to exclude both heterosexuals “who disagree with [certain religious] teachings on this issue” and “practicing homosexuals,” or else the group “would be engaging in prohibited sexual orientation discrimination, not permitted religious discrimination.” [230]

Many scholars and courts, however, find the status/belief distinction problematic, particularly when applied to sexual orientation. In contrast to a characteristic like gender, where identification as male or female does not necessarily dictate specific beliefs or behavior, the distinction between immutable sexual orientation and sexual conduct is less clear. In the final section, this Article addresses criticisms of the status/belief distinction.

B. Objections to the Status/Belief Distinction

A major, compelling objection to the status/belief distinction is that it does not adequately protect certain individuals from status-based discrimination in cases where status and belief (or conduct) are intertwined. The Martinez majority highlighted this concern when it quoted Bray v. Alexandria Women’s Health Clinic, [231] an equal protection case, for the proposition that “[a] tax on wearing yarmulkes is a tax on Jews.” [232] It is true that if the government wished to discriminate against individuals who are ethnically Jewish, an easy way to accomplish this would be to target conduct associated only with those who are Jewish, for example wearing yarmulkes. In Bray, however, the Supreme Court rightly noted that when the state or an individual chooses an irrational object for disfavor, such as a tax on yarmulkes, it can be assumed that the disfavor is motivated by status-based animus. [233] When performed by the government, this type of irrational, animus- or status-based classification is prohibited by the Fourteenth Amendment’s Equal Protection Clause. [234]

Analogously, if a student organization excluded students for an arbitrary reason usually associated with a particular status—with no indication of how this exclusion would affect the group’s ability to organize around a coherent ideology—this exclusion could be considered status-based and therefore not protected by expressive association under the First Amendment. Further, discrimination against an individual based on the religion into which he or she was born, in contrast to selecting individuals based on their current beliefs, would be considered unprotected status-based discrimination. For instance, if Jews or Muslims were excluded from a group due to their ethnicities, a university’s application of nondiscrimination policy to prevent this type of discrimination should withstand constitutional scrutiny. [235]

Religious “discrimination” presents a relatively easy case for discerning the difference between status-based and belief-based exclusions. Although some may argue that religion confers a “status,” [236] individuals are free to discard their religious or atheistic views at any point. Thus, CLS’s desire to limit its membership to those who subscribe to its statement of faith represents a belief-based exclusion, which should be protected by expressive association, just as if a campus environmentalist group wished to limit its membership to those who acknowledge global warming.

A more difficult case involves private organizations’ exclusion of those who engage in homosexual conduct. As scholars have forcefully argued, there is something “disingenuous” in “tell[ing] someone it is permissible to ‘be’ gay, but not permissible to engage in gay sex.” [237] Another scholar explained that “[t]he love, intimacy, and affection that lesbian, gay, and bisexual people share with their same-sex partners is indeed a crucial element in sexual orientation, and insofar as the status/conduct distinction denies that reality, it pollutes the theoretical discourse on homosexuality.” [238] Being gay and actively loving someone of the same sex are much more deeply and inextricably intertwined than, for example, being female and having certain views, or engaging in certain conduct. [239]

These arguments against the status/belief distinction as applied to sexual orientation have great purchase, especially when analyzing governmental discrimination or criminalization of conduct associated with LGBT individuals. [240] When the government criminalizes homosexual conduct, for instance, it prohibits gays from engaging in behavior intimately connected with who they are. [241] However, private organizations exist to promote a diversity of views, and gays can continue to champion equality in, or simply become a member of, organizations that support, or are neutral about, gay rights. Further, organizations that accept those who identify as LGBT but practice abstinence (or condemn homosexual acts) cannot be categorized as excluding members who engage in homosexual conduct as a pretext for excluding all gays. Sexual orientation may be immutable, but sexual conduct is certainly voluntary. As disadvantageous as that recognition is for gay rights and important societal interest in equality, it cannot be ignored in the context of private organizations exercising their rights to expressive association. Recognizing the difference between sexual orientation and sexual conduct does not “pollute the discourse.” In fact, it seems that those who wish to mandate that Christian groups accept gays as members seek to manufacture an artificial version of tolerance through coercion. Moreover, contrary to the Martinez Court’s assertion, it would not be unduly burdensome to discern whether a religious organization excluded those who engage in homosexual conduct as a pretext for excluding gays. [242] If the Christian Legal Society truly wished to exclude gays, this status-based discrimination would become apparent when a religious LGBT student who believed that homosexuality is a sin attempted to join the group. In addition, there are complex problems inherent in administering a policy like the all-comers policy, which does not distinguish between status and belief. A university administering an all-comers policy presumptively takes on the responsibility of policing all student groups, from political newspapers to religious groups to advocacy groups, in order to ensure that they are not in some way discouraging people hostile to their message from joining. Asking expressive organizations not to “discriminate” on the basis of their expressive purpose runs contrary to their raison d’être, and it will be difficult to monitor compliance with this policy. For instance, what if a libertarian publication allows all students to join, but never gives any editing responsibility to non-libertarian students? This denies certain students the benefits of membership enough to consider them essentially excluded.

On the other side of the spectrum, some might argue that the status/belief distinction is not protective enough of expressive association. In a limited public forum, removing protection for status- based discrimination might impede some organizations’ ability to promote their views, especially if these organizations wish to use status- based exclusion to exemplify their beliefs. [243] The inability to discriminate on the basis of status might leave, for example, an orthodox Jewish student group that wanted only men to lead prayer services unprotected. [244]

However, at least for the purposes of a limited public forum, safeguarding an organization’s right to select members based on a shared ideology respects a core aspect of freedom of association—the ability to exclude those of differing views. Specifically, it allows the government, or a public university, to place limitations on private organizations while adhering to a viewpoint-neutral test. This may cause the derecognition of student groups that seek to exclude members based on status, but it preserves a balance between associational rights in a limited public forum and the important societal interest in equality.

VI. CONCLUSION

The Supreme Court’s dramatically different approach to expressive association in Christian Legal Society v. Martinez failed to protect the rights of student groups that wish to select members on the basis of shared ideology. Merging speech and expressive-association claims essentially nullifies associational rights in a limited public forum, where the resources the government provides to set up a platform for expression are at times minimal. The Martinez majority’s dramatic legal maneuver was executed with little support or fanfare, and the majority failed to acknowledge that expressive association contains both speech and conduct elements that cannot be adequately protected using the viewpoint-neutrality test applicable to speech rights in a limited public forum.

This Article proposes alternative ways to analyze a student organization’s challenge to a university policy that burdens its expressive-association rights. In crafting these alternatives, this Article attempts to respect the constraints of a limited public forum and society’s interest in equality while providing a framework that safeguards expressive association. Expressive association should be recognized as separate from speech, even in a limited public forum, because it is so fundamental to the preservation of speech and minority viewpoints. The courts must find a way to afford the government greater deference to implement policies that burden expressive association in a limited public forum, while ensuring that both the essential qualities of the right are preserved and that the government does not act with an impermissible motive.

[1] Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971 (2010).

[2] See id. Public universities, established by the state and at least partially supported by state taxes, must comply with the federal Constitution. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 822 (1995) (“The University of Virginia, an instrumentality of the Commonwealth for which it is named [is] thus bound by the First and Fourteenth Amendments[.]”).

[3] Martinez, 130 S. Ct. at 2987 n.15.

[4] Id. at 2990 (noting that “the Law School reasonably adheres to the view that an all-comers policy, to the extent it brings together individuals with diverse backgrounds and beliefs, ‘encourages tolerance, cooperation, and learning among students.’”). But see Alan E. Brownstein and Vikram D. Amar, Reviewing Associational Freedom Claims in a Limited Public Forum: An Extension of the Distinction between Debate Dampening and Debate Distorting State Action, 38 HASTINGS CONST. L.Q. 505, 510 (2011) (“Does a policy that allows any group, formed around any set of ideas or activities, to exist—but also requires each such group to take all persons, even those who may vehemently disagree with those ideas or activities—make a lot of sense?”).

[5] Martinez, 130 S. Ct. at 2975. Forum analysis determines the character of a forum affected by law in order to determine the free speech protections that attach. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985) (holding that, before determining whether a speech regulation is permissible, the Court “must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.”). There are four major types of forums—the public forum, the designated public forum, the limited public forum, and the nonpublic forum—and different speech protections attach to each. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–47 (1983) (describing the different forums). The public forum designation, which attaches to places like parks or streets that “by long tradition or by government fiat have been devoted to assembly and debate,” receives the highest First Amendment scrutiny. Id. at 45. Speech restrictions that occur in a limited public forum, the designation that attaches to student organizations, are constitutional if they are viewpoint neutral and reasonable in light of the purposes of the forum. See Rosenberger, 515 U.S. at 829 (“Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum,’ nor may it discriminate against speech on the basis of its viewpoint.” (citation omitted)).

[6] Martinez, 130 S. Ct. at 2988.

[7] See Brownstein & Amar, supra note 4, at 510 (arguing that the Court was “truly deferential” in its application of the limited public forum test in Martinez).

[8] Martinez, 130 S. Ct. at 2978 (“The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”).

[9] Id. at 2990 (rejecting CLS’s argument that “it does not exclude individuals because of sexual orientation, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong’” (citation omitted)).

[10] Martinez’s merging of speech and expressive conduct was largely motivated by the context in which the case took place—Hastings’s all-comers policy affected the “limited public forum” of student organizations. See id. at 2984–86. A limited public forum exists when the government opens up its property for the discussion of limited subjects, or to limited speakers. See Rosenberger, 515 U.S. at 829 (“The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics.”).

[11] See infra Part IV.B.

[12] Healy v. James, 408 U.S. 169, 181 (1972).

[13] Ashutosh Bhagwat, Associational Speech, 120 YALE L.J. 978, 981 (2011).

[14] See generally id.

[15] See, e.g., Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87, 88 (1982) (holding that state cannot impose public disclosure laws to require political party to disclose list of those receiving campaign disbursements); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 451 (1958) (deeming it unconstitutional for state to compel the NAACP to disclose its membership list). These cases protect the individual’s ability to join an unpopular organization without fear of “threats, harassment, and reprisals” but also protect the organization as an entity, as disclosure requirements can “cripple a minor party’s ability to operate effectively[.]” Brown, 459 U.S. at 97, 98.

[16] See, e.g., Clingman v. Beaver, 544 U.S. 581 (2005) (holding that state law mandating “semi- closed” primaries, where registered members of one party could not vote in another party’s primary, did not severely burden associational rights); Tashjian v. Republican Party, 479 U.S. 208 (1986) (invalidating state law requiring “closed primaries,” prohibiting independents from voting in a party’s primary); Democratic Party of U.S. v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981) (invalidating state law compelling the Democratic Party to permit anyone to vote in its primary elections).

[17] See generally Daniel A. Farber, Speaking in the First Person Plural: Expressive Associations and the First Amendment, 85 MINN. L. REV. 1483 (2001) (charting the progression of the freedom of association doctrine).

[18] See id. at 1504 (explaining that expressive association allows individuals to “join forces and communicate more effectively than they could separately . . . . People in a group can encourage each other’s activities; to the extent that their expression is aimed at each other instead of outsiders, they may value the expression more because it is shared by other group members.”).

[19] See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2985 (2010) (“‘Freedom of association,’ we have recognized, ‘plainly presupposes a freedom not to associate.’” (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984))).

[20] John D. Inazu, The Unsettling “Well-Settled” Law of Freedom of Association, 43 CONN. L. REV. 149, 201–02 (2010) (arguing that the primary value of expressive association is that it “permits dissent to manifest through groups” (emphasis added)).

[21] See John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 TENN. L. REV. 485, 485–89 (2010) (tracing the history of freedom of association and arguing that most scholars have overlooked the fact that “[t]he Supreme Court’s foray into the constitutional right of association began . . . with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)”).

[22] See, e.g., Barbara K. Bucholtz, What Goes Around Comes Around: Legal Ironies in an Emergent Doctrine for Preserving Academic Freedom and the University Mission, 13 TEX. WESLEYAN L. REV. 311, 336 n.131 (2007) (describing Roberts as the “seminal case that elaborated the current ‘expressive association’ doctrine”); Linda E. Fisher, Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups, 46 ARIZ. L. REV. 621, 637 (2004) (explaining how the Roberts Court “subdivided the right [of association] into two related but distinct components: expressive association—the right to associate to engage in protected First Amendment expression—and intimate association—the right to associate to pursue private relationships”); Shawn M. Larson, For Blacks Only: The Associational Freedoms of Private Minority Clubs, 49 CASE W. RES. L. REV. 359, 366 (1999) (“The Roberts Court, in an opinion by Justice Brennan, established the framework for interpreting the freedom of association as being composed of two separate elements: the ‘freedom of intimate association and [the] freedom of expressive association.’” (quoting Roberts, 468 U.S. at 618)).

[23] 468 U.S. 609 (1984).

[24] Id. at 612.

[25] Id. at 612–14.

[26] Id. at 614–15 (quoting MINN. STAT. § 363.03, subd. 3 (1982) (current version at MINN. STAT. ANN. § 363A.11 (West 2003))).

[27] For a deeper understanding of the history of public accommodations laws, see Andrea R. Scott,
State Public Accommodation Laws, the Freedom of Expressive Association, and the Inadequacy of the Balancing Test Utilized in Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000), 24 HAMLINE L. REV. 131, 145–46 (2000), and see generally Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283 (1996).

[28] Roberts, 468 U.S. at 613–14, 616 (citation omitted).

[29] Id. at 618–19. According to the Court, “[f]amily relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.” Id. at 619–20.

[30] Id. at 623.

[31] Id. at 622 (citation omitted).

[32] Id. at 623.

[33] Roberts, 468 U.S. at 623.

[34] Id. at 626.

[35] Id. at 627.

[36] Id. at 628 (“In the absence of a showing far more substantial than that attempted by the Jaycees, we decline to indulge in the sexual stereotyping that underlies appellee’s contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization’s speech.”).

[37] Id. at 622.

[38] 408 U.S. 169 (1972).

[39] Id. at 181–82.

[40] Id. at 171.

[41] Id. at 180 (finding that the “vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools” (citation omitted) (internal quotation marks omitted)).

[42] Id. at 181.

[43] Healy, 408 U.S. at 172 (citation omitted) (internal quotation marks omitted).

[44] Id. at 171–73.

[45] Id. at 184.

[46] Id. at 187–88.

[47] Id. at 182.

[48] Healy, 408 U.S. at 181 (citation omitted) (internal quotation marks omitted).

[49] Id.

[50] Id. at 183. In Martinez, the Court held that Hastings’s all-comers policy is “all the more creditworthy in view of the substantial alternative channels that remain open for [CLS-student] communication to take place.” Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2991 (2010) (alternation in original) (citation omitted) (internal quotation marks omitted).

[51] Healy, 408 U.S. at 182–83.

[52] Id. at 185–86. An organization’s viewpoint was an impermissible basis upon which to deny recognition, but a concrete and reasonable fear that the organization would engage in violent activity could justify a denial of recognition. Id. at 185–92.

[53] See infra Part IV.

[54] 487 U.S. 1 (1988).

[55] Id. at 6.

[56] The New York law made it “an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement [to withhold benefits from an individual] because of the race, creed, color, national origin or sex of [that] person[.]” Id. at 4 n.1 (internal quotation marks omitted) (quoting Local Law No. 97 of 1965, N.Y.C. ADMIN. CODE § 8-107(2) (1986)).

[57] Id. at 8, 11.

[58] Id. at 14.

[59] N.Y. State Club Ass’n, 487 U.S. at 13–14 (citation omitted).

[60] Id. at 13.

[61] Id. at 13. Id.

[62] Id. at 13. The status/belief distinction as applied to gays and lesbians is not entirely satisfying as a matter of legal logic or the realities of the gay experience. See infra Part V.B.

[63] Id. at 13. 515 U.S. 557 (1995).

[64] Id. at 13. Id. at 561, 581.

[65] Id. at 13. Id. at 561–62.

[66] Id. at 13. Id. at 560–61.

[67] Id. at 13. Id. at 566.

[68] Id. at 13. Hurley, 515 U.S. at 570.

[69] Id. at 13. Id. at 571–72.

[70] Id. at 13. Id. at 572 (emphasis added).

[71] Id. at 13. Id. at 572–73 (citations omitted).

[72] There is a great deal of evidence that sexual orientation is at least partially based on immutable, biological factors. See, e.g., Niklas Långström, Qazi Rahman, Eva Carlström & Paul Lichtenstein, Genetic and Environmental Effects on Same-sex Sexual Behavior: A Population Study of Twins in Sweden, 39 ARCHIVES SEXUAL BEHAV. 75 (2010); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503 (1994) (citing to evidence in scholarly and popular media substantiating the view that sexual orientation is immutable); Larry Gostin, Genetic Discrimination: The Use of Genetically Based Diagnostic and Prognostic Tests by Employers and Insurers, AM. J. L. & MED. 109, 119 (1991); US Researchers Find Evidence That Homosexuality Linked to Genetics, THE GUARDIAN, Dec. 1, 2008, available at http://www.guardian.co.uk/world/2008/dec/01/homosexuality-genetics-usa.

[73] Hurley, 515 U.S. at 580 (referring to N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 13 (1988)).

[74] Id. at 574.

[75] Id. at 574–75. Although the Court was not certain as to why the Council wished to exclude GLIB, it held that “whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control.” Id. at 575.

[76] 530 U.S. 640 (2000).

[77] Id. at 645, 661.

[78] Id. at 644, 646.

[79] Id. at 648 (citation omitted).

[80] Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)).

[81] Dale, 530 U.S. at 649–50.

[82] Id. at 649.

[83] Id. at 652.

[84] Id. at 655.

[85] Id. at 653 (citations omitted).

[86] Dale, 530 U.S. at 655.

[87] LGBT is an acronym that refers to the broader lesbian, gay, bisexual, and transgender community.

[88] Dale, 530 U.S. at 655–56 (“The presence of an avowed homosexual and gay rights activist in an assistant scoutmaster’s uniform sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy.”).

[89] Id. “Expressive conduct” is a term applicable to restrictions on conduct that impair an individual’s ability to express him or herself. See United States v. O’Brien, 391 U.S. 367, 376–77 (1968). Expressive conduct claims are analyzed within the ambit of free speech claims, not freedom of association claims. Id.

[90] See O’Brien, 391 U.S. at 376 (“This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”).

[91] Dale, 530 U.S. at 659.

[92] In a dissent joined by three other Justices, Justice Souter notes the applicability of O’Brien by arguing that the mere inclusion of Dale “sends no cognizable message to the Scouts or to the world. Unlike [the situation in Hurley], Dale did not carry a banner or a sign . . . . [T]he mere act of joining the Boy Scouts. . . does not constitute an instance of symbolic speech . . . .” Id. at 694–95. Justice Souter cites O’Brien for the proposition that “we cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Id. at 695 (internal quotation marks omitted) (quoting O’Brien, 391 U.S. at 376).

[93] Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 69 (2006).

[94] 10 U.S.C. § 983 (2006).

[95] Id.

[96] FAIR, 547 U.S. at 52.

[97] Id. at 65–66.

[98] Id. at 66.

[99] Id.

[100] Id. at 68.

[101] FAIR, 547 U.S. at 69 (citations omitted) (internal quotation marks omitted).

[102] Id. at 70.

[103] Id. at 69, 70.

[104] Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971 (2010).

[105] Id. at 2978.

[106] Id.

[107] These colleges included Arizona State University, Ball State University, Boise State University, California State University (several campuses), Cornell University, Gonzaga University, Harvard University, Milwaukee School of Engineering, Ohio State University, Pace University, Pennsylvania State University, Purdue University, Rutgers University, Shippensburg University of Pennsylvania, Southern Illinois University, State University of New York at Oswego, Texas A&M University, Tufts University, University of Florida, University of Georgia, University of Idaho, University of Iowa, University of Mary Washington, University of Minnesota, University of Montana, University of New Mexico, University of North Carolina at Chapel Hill, University of North Dakota, University of Toledo, University of Wisconsin (several campuses), Washburn University, and Wright State University. For information on these individual cases, see www.thefire.org.

[108] See infra Part V.A.

[109] Martinez, 130 S. Ct. at 2979.

[100] Id. (citation omitted).

[111] Id. at 2990. According to the majority, “Hastings’ policy . . . incorporates—in fact, subsumes— state-law proscriptions on discrimination[.]” Id.

[112] Id. at 2979.

[113] Id. (alteration in original) (citation omitted). CLS contended that the university actually applied its nondiscrimination policy, not this stipulated-to all-comers policy, but the Court rejected this argument. Id. at 2982–84. Justice Alito argued in dissent that the all-comers policy was created in response to this litigation, and that the law school actually consistently applied and invoked its nondiscrimination policy, even when denying recognition to CLS. Id. at 3001–02 (Alito, J., dissenting).

[114] Martinez, 130 S. Ct. at 2980.

[115] Id.

[116] Id.

[117] Id. at 2981.

[118] See supra notes 93–103 and accompanying text (discussing Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 69 (2006)).

[119] Martinez, 130 S. Ct. at 2985.

[120] Id.

[121] 454 U.S. 290 (1981).

[122] Id. at 300 (“A limit on contributions in this setting need not be analyzed exclusively in terms of the right of association or the right of expression. The two rights overlap and blend; to limit the right of association places an impermissible restraint on the right of expression.”).

[123] Id.

[124] Martinez, 130 S. Ct. at 2984–85; see also supra note 5 (describing forum analysis).

[125] Martinez, 130 S. Ct. at 2985. According to the Court, “the strict scrutiny we have applied in some settings to laws that burden expressive association would, in practical effect, invalidate a defining characteristic of limited public forums— the State may reserv[e] [them] for certain groups.” Id. at 2985 (alterations in original) (internal quotation marks omitted) (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)).

[126] See Rosenberger, 515 U.S. at 829 (“The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics.”).

[127] Id. at 829–30. The requirement of viewpoint neutrality prohibits the government from “discriminating against speakers based on particular views, beliefs, or opinions[.]” Marvin Ammori, Beyond Content Neutrality: Understanding Content-Based Promotion of Democratic Speech, 61 FED. COMM. L.J. 273, 283–84 (2008). “[A] law suppressing political (or, say indecent) speech would be content-based but not viewpoint-based; a law suppressing Republican political (or indecent) speech would be viewpoint-based.” Id. at 284.

[128] Brownstein & Amar, supra note 4, at 510–11 (describing how the Court gave Hastings a significant amount of deference in applying its limited public forum test). Brownstein argues that the Court did not say much about whether ’Hastings’s policy was actually reasonable. Brownstein and Amar ask,“[G]iven its open-endedness, what purposes does the RSO policy really serve? Does a policy that allows any group, formed around any set of ideas or activities, to exist—but also requires each such group to take all persons, even those who may vehemently disagree with those ideas or activities—make a lot of sense?” Id. at 510.

[129] Martinez, 130 S. Ct. at 2995.

[130] As Justice Alito notes in dissent, “funding plays a very small role in this case. Most of what CLS sought and was denied—such as permission to set up a table on the law school patio—would have been virtually cost free.” Id. at 3007 (Alito, J., dissenting). Justice Alito disputes the majority’s characterization of this case as involving a university subsidy, simply because a public university is lending its facilities. Much of a public university campus, especially for its students, is a public forum, where they eat, sleep, and converse outside of class. According to Justice Alito, “[i]f every such activity is regarded as a matter of funding, the First Amendment rights of students at public universities will be at the mercy of the administration.” Id.

[131] Id. at 2986 (majority opinion).

[132] Id.

[133] See supra notes 23–53 and accompanying text (describing Roberts v. United States Jaycees, 468 U.S. 609 (1984), and Healy v. James, 408 U.S. 169 (1972)).

[134] Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).

[135] Martinez, 130 S. Ct. at 2988–91.

[136] Id. at 2989 (alteration in original) (citations omitted) (internal quotation marks omitted).

[137] Id. at 2990.

[138] See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000) (noting that student organizations with minority views must be “treated with the same respect” as those with majority views); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 840 (1995) (describing how, in funding student organizations, a school’s purpose is “to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life”).

[139] There was significant evidence that Hastings’s all-comers policy was actually created as a pretext for penalizing groups with certain disfavored viewpoints. See Martinez, 130 S. Ct. at 3001–04 (Alito, J., dissenting) (cataloguing various “student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints”).

[140] Id. at 2999 (Kennedy, J., concurring).

[141] Id.

[142] Id. at 2990.

[143] Id. (citations omitted) (internal quotation marks omitted).

[144] See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 832–33 (1995) (rejecting university’s argument that it deserves greater latitude to craft policies implicating the use of its facilities, which are “scarce resources”); Widmar v. Vincent, 454 U.S. 263 (1981) (overturning university regulation prohibiting student organizations from using its facilities for religious purposes); Healy v. James, 408 U.S. 169, 180 (1972) (overturning university president’s derecognition of student group).

[145] Martinez, 130 S. Ct. at 2994 n.26 (“Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one.”).

[146] See supra notes 104–06, 118–23 and accompanying text.

[147] Martinez, 130 S. Ct. at 2992.

[148] Id. at 2993.

[149] In other cases involving student organizations, the Court has carefully scrutinized a university’s motives for enacting its policies and given special solicitude to minority views. See Rosenberger, 515 U.S. at 823 (overturning university policy denying funding to student publications that “primarily promote[] or manifest[] a particular belief in or about a deity or an ultimate reality” based on a suspicion that the university would not apply this policy evenhandedly); Gregory B. Sanford, Note, Your Opinion Really Does Not Matter: How the Use of Referenda in Funding Public University Student Groups Violates Constitutional Free Speech Principles, 83 NOTRE DAME L. REV. 845, 851 (2008) (arguing that the Rosenberger Court “demonstrated that it is willing to look beyond assertions that restrictions [upon student groups] are content-based to find that the restriction actually discriminates based on viewpoint”).

[150] Martinez, 130 S. Ct. at 2993.

[151] Id. at 2994.

[152] Expressive conduct is implicated when conduct, like burning a draft card, is unquestionably expressive. See supra notes 90–92 and accompanying text.

[153] Martinez, 130 S. Ct. at 2994 (alteration in original) (internal quotation marks omitted) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

[154] See Id.

[155] See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (“Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, ‘[f]reedom of association . . . plainly presupposes a freedom not to associate.’” (alternation in original) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984))).

[156] Martinez, 130 S. Ct. at 2990.

[157] Id.

[158] See supra Part II.B.

[159] Martinez, 130 S. Ct. at 2990.

[160] Id. (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (internal quotation marks omitted) (quoting Lawrence v. Texas, 539 U.S. 558, 575 (2003))); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).

[161] Martinez, 130 S. Ct. at 2995 (alteration in original) (citation omitted) (internal quotation marks omitted).

[162] Id. On remand, the Ninth Circuit held that CLS had not preserved this issue for review and declined to address it. See Docket in Christian Legal Soc’y v. Kane, No. 06-15956, 2006 WL997217 (D. Cal. May 19, 2006).

[163] See Brownstein & Amar, supra note 4, at 510.

[164] Although courts must afford “a degree of deference to a university’s academic decisions, within constitutionally prescribed limits,” Grutter v. Bollinger, 539 U.S. 306, 328 (2003), the Martinez Court relied on the fact that the university was providing its facilities and “subsidizing student organizations” as an unprecedented reason to give Hastings deference. Martinez, 130 S. Ct. at 2990–91; see also supra Part III.C.

[165] Brownstein & Amar, supra note 4, at 507 (quoting Martinez, 130 S. Ct. at 2988-93). “The choice of the ‘reasonable’ and viewpoint-neutral test—that is, the choice of the appropriate doctrinal box or category on the First Amendment case law flowchart—essentially dictated the result.” Id.

[166] See Martinez, 130 S. Ct. at 2985–86; Brownstein & Amar, supra note 4, at 515 (“Is the analogy strong enough between the nature of speech regulations and the nature of association regulations to justify applying speech regulation categories to freedom of association claims? The Court clearly thinks that it is. However, the Court does very little to explain why it thinks so or to justify this conclusion.”).

[167] See Martinez, 130 S. Ct. at 2984–85; Brownstein & Amar, supra note 4, at 514.

[168] Martinez, 130 S. Ct. at 2985.

[169] Id. (alteration in original) (internal quotation marks omitted) (quoting Rosenberger v. Rector &Visitors of the Univ. of Va., 515 U.S. 819, 822 (1995)).

[170] See supra note 5 for an explanation on the different forums.

[171] Even in the speech context, however, forum analysis has been widely criticized for generating confusion and clouding assessment of First Amendment values. See, e.g., Daniel A. Farber & John E. Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REV. 1219, 1223 (1984) (“Even when public forum analysis is irrelevant to the outcome of a case, the judicial focus on the public forum concept confuses the development of first amendment principles.”); Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1718–19 (1987) (chronicling examples of public forum criticism); Robert L. Waring, Comment, Talk is Not Cheap: Funded Student Speech at Public Universities on Trial, 29 U.S.F. L. REV. 541, 556 (1995) (explaining that the imprecise tests for determining the nature of a particular forum have “generated tremendous confusion and controversy”).

[172] Professor Eugene Volokh, in an article cited by the Martinez Court, appears to argue that expressive association does not deserve independent protection in a limited public forum because the government does not have a “duty to subsidize” the exercise of constitutional rights. Eugene Volokh, Freedom of Expressive Association and Government Subsidies, 58 STAN. L. REV. 1919, 1920–23 (2006) (arguing that a governmental “exclusion based on a group’s exercise of its expressive association rights is not barred by the No Governmental Viewpoint Discrimination exception” to the “No Duty To Subsidize” principle). This Article addresses Volokh’s understanding of student organizations and government subsidies in a later section.

[173] See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 414 (1996) (“First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives.”); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 227 (1983) (arguing that the Court has “tended increasingly to emphasize motivation as a paramount constitutional concern”).

[174] Brownstein & Amar, supra note 4, at 516.

[175] Id. at 517. Brownstein and Amar compare viewpoint-neutral restrictions to content-neutral restrictions, which restrict speech based on their subject matter or topic. See Ammori, supra note 127, at 283–84. “The requirement that the government be content-neutral in its regulation of speech means that the government must be both viewpoint neutral and subject matter neutral.” Erwin Chemerinsky, The Fifty-Fifth Cleveland-Marshall Fund Lecture: The First Amendment: When the Government Must Make Content-Based Choices, 42 CLEV. ST. L. REV. 199, 202–03 (1994).

[176] Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2980 n.2 (2010).

[177] Id. (“Hastings’ open-access policy, however, requires . . . that student organizations open eligibility for membership and leadership regardless of a student’s status or beliefs.”).

[178] The majority in Martinez also blithely overlooks the fact that groups most needing First Amendment protection—those with minority or unpopular views or with the most determined enemies—will be most vulnerable to “hostile takeovers.” Seeid.at 2992.

[179] See Volokh, supra note 172, at 1931–33.

[180] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 823, 825, 831 (1995) (citation omitted) (internal quotation marks omitted).

[181] Id. at 831.

[182] Martinez, 130 S. Ct. at 2993.

[183] In the speech arena, a viewpoint-neutral regulation that has a disparate impact on certain speech is constitutionally permissible, so long as the regulation was not intended to suppress a particular viewpoint or distort debate. See Brownstein & Amar, supra note 4, at 517–23. Applying this concept to expressive association is misplaced, however, because viewpoint neutrality, as understood in the speech context, does not protect associational rights. Once an amended understanding of viewpoint neutrality is established for expressive association, regulations that are viewpoint neutral but have a disparate impact would also be constitutionally permissible. See infra Part IV.B.

[184] Martinez, 130 S. Ct. at 2988.

[185] See generally Jay D. Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism, 66 GEO. WASH. L. REV. 298, 315–22 (1998).

[186] See, e.g., Brownstein & Amar, supra note 4, at 540–41.

[187] See Martinez, 130 S. Ct. at 3013–14 (Alito, J., dissenting) (discussing how the all-comers policy is “antithetical” to encouraging a diversity of viewpoints, and “no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views.”).

[188] See supra notes 173–83 and accompanying text for a discussion on how regulations targeting those who believe in an “ultimate reality,” even if the regulation applies to deist and atheist groups equally, is considered viewpoint based. Because religion, even defined broadly, is considered a viewpoint by the Court, prohibiting exclusions based on religious beliefs would be unconstitutional under this proposed test.

[189] It is unclear whether a regulation targeting political speech, or targeting the associational rights of those who wish to exclude or include political views, would be considered content discriminatory or viewpoint discriminatory. Content-discriminatory regulations are permissible in a limited public forum, whereas viewpoint-discriminatory policies are not. See supra note 127 (explaining the difference between content-neutral and viewpoint-neutral restrictions on speech). That said, following the test in Martinez, a school would also need a legitimate pedagogical reason to burden “political speech,” and thus, modifying the test in Martinez to protect associational rights, should similarly need a legitimate pedagogical reason to burden the expressive association of groups who wish to select members on the basis of shared political views.

[190] For further elaboration on this point and the distinction between status and belief/conduct, see infra Part V.

[191] Martinez, 130 S. Ct. at 3002–03 (Alito, J., dissenting). At oral argument, Justice Scalia noted that, “one reason why I am inclined to think this [all-comers policy] is pretextual is that it is so weird to require the — the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.” Transcript of Oral Argument, at 34, Martinez, 130 S. Ct. 2971 (No. 08-1371), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08- 1371.pdf.

[192] Volokh, supra note 172, at 1923.

[193] Id.

[194] Id. at 1924–28.

[195] Id. at 1923, 1938–41.

[196] In fact, this was the contention in Martinez. See Martinez, 130 S. Ct. at 3004 (Alito, J., dissenting).

[197] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995).

[198] See id. at 840 (describing the purpose of funding student organizations as “to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life”).

[199] See id. at 841–42 (“The University has taken pains to disassociate itself from the private speech involved in this case. The Court of Appeals’ apparent concern that Wide Awake’s religious orientation would be attributed to the University is not a plausible fear, and there is no real likelihood that the speech in question is being either endorsed or coerced by the State[.]”).

[200] According to Justice Stevens, a “free society” must tolerate organizations that “exclude or mistreat Jews, blacks, and women—or those who do not share their contempt for Jews, blacks, and women[,]” but this society “need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.” Martinez, 130 S. Ct. at 2998 (Stevens, J., concurring). This contention seems to imply that universities do not have to “sanction” groups whose ideology involves hate or bigotry, a contention that even the majority in Martinez rejects. See id. at 2994 n.26 (majority opinion) (“Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish— including a discriminatory one.”).

[201] Justice Stevens wrote quite explicitly that, contrary to the Supreme Court’s earlier understanding of the student organizational forum, “[i]t is not an open commons that Hastings happens to maintain. It is a mechanism through which Hastings confers certain benefits and pursues certain aspects of its educational mission.” Martinez, 130 S. Ct. at 2998 (Stevens, J., concurring). Further, the university “could not remain neutral— in determining which goals the program will serve and which rules are best suited to facilitate those goals.” Id.; see also supra Part III.

[202] See Toni Massaro, Christian Legal Society: Six Frames, 38 HASTINGS CONST. L.Q. 569 (2011). Massaro, analyzing the issue of subsidies and state action, argued that, although the school’s speech was not so entangled with CLS’s speech as to render its exclusion of certain students a state action, “[t]he school was involved in a way that it would not have been if no funding, no imprimatur, and no conditions were involved.” Id. at 589.

[203] Martinez, 130 S. Ct. at 2990 (citation omitted) (internal quotation marks omitted).

[204] See supra Part III.B

[205] In Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), the Supreme Court held that a public university must allocate the funds to student organizations from its mandatory student activities fee in a viewpoint-neutral fashion. Southworth, 529 U.S. at 233–34. Thus, a university cannot fund a pro-life group but not a pro-choice group simply because it is providing university facilities. Student organizations of all ideologies deserve the same chance to be funded, so that “minority views are treated with the same respect as are majority views.” Id. at 235.

[206] See Southworth, 529 U.S. at 217; Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995); Widmar v. Vincent, 454 U.S. 263 (1981); Healy v. James, 408 U.S. 169, 180 (1972).

[207] Massaro, supra note 202, at 583 (emphasis added).

[208] See Volokh, supra note 172.

[209] Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2985 (2010) (citation omitted).

[210] See supra Part IV.B.

[211] See supra Part III.

[212] See Charles Morris, Association Speaks Louder Than Words: Reaffirming Students’ Right to Expressive Association, 19 GEO. MASON U. C.R. L.J. 193, 196 (2008) (“[T]he Supreme Court and lower courts have consistently held that organizations may exclude potential members whose ideologies and values are fundamentally opposed to the groups’ collective ideology and values.”).

[213] See supra Part II.

[214] See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984) (“[D]iscrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life.”).

[215] Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2979 (2010) (alteration in original) (citation omitted) (internal quotation marks omitted).

[216] Id. at 2990. Justice Ginsburg even claimed that “[o]ur decisions have declined to distinguish between status and conduct in this context[,]” but failed to cite to any cases involving expressive association. Id.; see also supra notes 118–27 and accompanying text.

[217] Transcript of Oral Argument, at 46–47, Martinez, 130 S. Ct. 2971 (No. 08-1371).

[218] It is important to note that this discrimination on the basis of belief should be considered only a “good” thing when exercised by private organizations, in order to promote expressive association. This Article does not wish to disturb nondiscrimination laws as they apply to the employment context, where First Amendment protections are not as salient. See generally Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 J.C. & U.L. 385 (2009).

[219] See supra notes 18–20 and accompanying text.

[220] However, discrimination on the basis of the religion into which an individual is born, if he or she no longer practices that religion, represents discrimination on the basis of an immutable status, and presumably would not be sanctioned by Chief Justice Roberts.

[221] Martinez, 130 S. Ct. at 2974 (“Hastings rejected CLS’s application for [registered student organization] status on the ground that the group’s bylaws did not comply with Hastings’ open- access policy because they excluded students based on religion and sexual orientation.”).

[222] The Christian Legal Society is a nationwide organization, with chapters on campuses across the country. Id. at 857–58.

[223] Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006).

[224] Id. at 860 (citation omitted) (granting a preliminary injunction against application of a university’s nondiscrimination policy to a CLS chapter on expressive association grounds).

[225] Id.

[226] Id.

[227] Id. This nondiscrimination policy mandated that Southern Illinois University will “provide equal employment and education opportunities for all qualified persons without regard to race, color, religion, sex, national origin, age, disability, status as a disabled veteran of the Vietnam era, sexual orientation, or marital status.” Id. at 858 (citation omitted) (internal quotation marks omitted).

[228] See Volokh, supra note 172, at 1938.

[229] Id.

[230] Id.

[231] 506 U.S. 263, 270 (1993).

[232] Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2990 (2010) (internal quotation marks omitted) (quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)).

[233] Bray, 506 U.S. at 270 (“Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed.”).

[234] See generally Cass R. Sunstein, The Supreme Court 1995 Term: Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4 (1996) (discussing the invalidation of statutes motivated by animus towards gays and African Americans).

[235] It is also important to note that a far greater societal injustice occurs when the government classifies individuals on the basis of immutable characteristics than when private organizations, who are not subject to the Fourteenth Amendment, engage in exclusionary practices.

[236] See Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 72 BROOK. L. REV. 61, 104 (2006) (“I have the same reaction to those who blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?”). Professor Feldblum incorrectly conflates immutable characteristics, like race or sexual orientation, with religious identity and beliefs, which are voluntary. Id.

[237] Id.

[238] Teresa M. Bruce, Note, Doing the Nasty: An Argument for Bringing Same-Sex Erotic Conduct Back Into the Courtroom, 81 CORNELL L. REV. 1135, 1170–71 (1996).

[239] See Diane H. Mazur, The Unknown Soldier: A Critique of “Gays in the Military” Scholarship and Litigation, 29 U.C. DAVIS L. REV. 223, 225 (1996) (“The status/conduct distinction . . . denies the importance of normal human intimacy.”); Roderick M. Hills, Jr., Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar’s Analysis of Romer, 95 MICH. L. REV. 236, 249– 50 (1996) (“[G]ays and lesbians are not interested in merely ‘being gay’ (whatever that means): they are interested in conduct: making love, forming relationships, dating, displaying photos of partners in the workplace, wearing wedding rings, living together in rental units, holding hands in public, and otherwise expressing desire, affection, and commitment.”).

[240] See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“Our decisions have declined to distinguish between status and conduct in this context.”). Martinez quoted Lawrence v. Texas, 539 U.S. 558, 575 (2003), for the proposition that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” Martinez, 130 S. Ct. at 2990; see also Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”).

[241] Martinez, 130 S. Ct. at 2990.

[242] Id. (“CLS proposes that Hastings permit exclusion because of belief but forbId discrimination due to status. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief- based garb?” (citation omitted)).

[243] See supra notes 76–87 and accompanying text (discussing Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)).

[244] See Transcript of Oral Argument, at 45–46, Martinez, 130 S. Ct. 2971 (No. 08-1371) (Alito, J.) (“If an orthodox Jewish group or a Muslim group applied for recognition and the group said part of our beliefs is—one of our beliefs is that men and women should sit separately at religious services, would Hastings deny registration to that group?”).

Even so, I didn’t expect experienced student conduct administrators to be among those mistaking our defense of due process for a defense of sexual assault. So it is therefore disappointing to find that some student conduct veterans are, in fact, doing just that.

In a recent blog entry, Illinois State University Associate Dean of Students Rick Olshak accuses FIRE of many things: engaging in a “sad and tired act” of “overstating a fear that generally exists in their own minds”; “using a handful of cases to project an inaccurate hypothesis”; “challenging [] every step taken to protect those that have historically been at a disadvantage”; and propagating an “alarmist mentality.” And that’s just with regard to our daily work of defending student and faculty rights, generally.

Turning specifically to FIRE’s May 5 letter to OCR, Olshak hurls still more accusations: FIRE is treating due process rights as a “a zero-sum game,” “puffing up its chest and staring down OCR in a public tantrum over how the [OCR's Dear Colleague Letter of April 4, 2011] will now infringe upon free speech rights and violate due process rights for accused students”; and failing to “acknowledge the rights of aggrieved parties to participate equitably in processes that matter just as much to them as they do to the accused students.”

Most disappointingly of all, Olshak cites with approval Brett Sokolow, founder and president of the National Center for Higher Education Risk Management, as stating that “all FIRE has done is to demonstrate that it could stand up for the rights of rapists everywhere.” But before answering this remarkable charge, let’s go through Olshak’s arguments point by point.

FIRE: Overstating the Problem?

First, let’s cover Olshak’s problems with FIRE’s work generally. Olshak’s central critique seems to be that FIRE is a “one-trick pony”—that we invariably “seize on a handful of cases, some entirely out of context, to paint with a broad brush and accuse universities of infringing upon free speech and trying to create a politically correct culture of automatons.”

Does FIRE emphasize the worst abuses we’ve seen in our nearly 12 years defending student and faculty rights to illustrate the problem on campuses across the country? Of course! Why wouldn’t we want to tell the country about the student-employee who was found guilty of racial harassment for reading a book? Why wouldn’t we want to shine a spotlight on a student expelled for posting a collage on Facebook? FIRE is an advocacy group defending student and faculty rights, so you can bet we want the country to know about particularly egregious and unconstitutional rights violations. FIRE’s lawyers specialize in constitutional law, but even we’re shocked on occasion by the abuses we’ve seen. While it’s true that we encounter the worst of what happens on campus, these terrible abuses of student rights cannot be cursorily wished away or dismissed as mere anomalies. As FIRE President Greg Lukianoff said to me recently, “When universities are helping organize disruptions of musical comedies because they don’t like the content, that’s a problem.”

Do we take cases “entirely out of context”? Not at all. For every case we publicize, we post all of our materials and all of the evidence we have available on the accompanying case page. Check out our case archives for many, many examples. After levying the accusation, Olshak fails to cite any example of FIRE taking a case “entirely out of context,” and for a good reason: We don’t.

Olshak’s overarching argument is that by highlighting these abuses, FIRE is “painting with a broad brush” and “overstating its case to reach predetermined conclusions that are not supported by the facts.” In so doing, Olshak argues that FIRE is making all student conduct administrators look bad—indeed, he takes “personal offense” with us for doing so. But Olshak fails to acknowledge the fact that the cases we highlight aren’t isolated incidents. When 67% of the 390 colleges and universities we examined last yearmaintain policies that seriously infringe upon students’ free speech rights, there is a free-speech problem on campus.

Olshak argues that FIRE’s 200 victories over nearly 12 years are evidence that we overstate this problem:

By my math, that is approximately 16.7 “victories” a year, and I won’t get into what constitutes a victory, or how many of these cases are actually related to student free speech and conduct issues, since a large portion of FIRE’s advocacy has been on behalf of university faculty as well as students. But let’s look at that math. I know that in my own professional responsibilities I have averaged at least as many decisions annually (sometimes far more) that would be perceived as potential free speech issues, and I am not the only person on my campus who is in the position to make similar decisions. Now magnify that by more than four thousand institutions across the country. It gets very hard to believe that there is this Orwellian conspiracy that Kors, Silverglate, Lukianoff, and others would have us believe.

FIRE declares public victories when we resolve a case we’ve been forced to take public. We receive hundreds of case submissions annually. (Who knows how many hundreds or thousands of students don’treport rights violations, whether out of confusion, fear, apathy, ignorance, or simply not knowing to whom they can turn?) Many of these complaints are resolved privately, many are referred to other organizations, and many are submitted to us after a student has graduated and there is nothing FIRE can do to help. We can’t do it all ourselves—as Olshak notes, there are more than 4,000 institutions across the country. We’re a small non-profit organization with a national mission. We have fewer than twenty people on staff, and we don’t directly litigate. Given those structural factors, I would say that one major public victory per month every year for nearly twelve years is an excellent record. What’s more, the lion’s share of our victories have come in the last few years, because we’re now well-staffed enough to handle a larger percentage of the case submissions we receive. And while FIRE’s goal has always been to put ourselves out of work, the cases keep rolling in, every week of every month of every year.

The fact is that free speech abuses occur with shocking regularity on campuses across the country. Don’t believe FIRE? Ask the Student Press Law Center; they’re not hurting for “business” either. Don’t believe the good folks at SPLC? Ask the Thomas Jefferson Center for the Protection of Freedom of Expression, whose annual “Muzzle Awards” list invariably includes a case of campus censorship. Don’t believe them? Ask the students themselves, as researchers for the Association of American Colleges and Universities did just last year. Their 2010 survey (.PDF) found that less than a third—30.3%—of seniors strongly agreed that it was safe to hold unpopular positions on campus. That means more than two-thirds of seniors deem it relatively “unsafe” to hold unpopular opinions at their institution. (As far as we’re concerned, answering that it’s only somewhat safe to hold unpopular opinions is effectively the same as answering “not really.”) I would hope that all American citizens would agree this is a serious problem.

Nevertheless, Olshak argues FIRE must be guilty of hyperbole, because free speech abuses don’t happen on his watch: “In my own experience I have handled numerous cases that were overtly free speech issues, and I ruled in each case on the side of free speech, not for any reservations I may have had about FIRE and their ability to advocate, but because it was the right decision to make.” Count FIRE among the first to applaud Olshak for doing the right thing. While we rate Illinois State University as a “red light” school due to its policies, we haven’t had any cases on Olshak’s campus, so (as far as we know) the kudos is deserved.

But as Olshak himself notes, “there are just enough people doing their jobs wrong and/or making poor choices to give the rest of us a bad name.” So while Olshak is doubtlessly right in pointing out that many student conduct administrators like himself consistently do the right thing and uphold student rights, not all share his respect for civil liberties. That’s where FIRE comes in. If, for reasons of professional pride, Olshak chooses to attack the messenger instead of acknowledging the problems on campus, that’s his choice.

Now, I can certainly understand being frustrated with people criticizing one’s profession in general terms—after all, I’m a lawyer. People love us, let me tell you. But FIRE is a watchdog group, and our beat includes student conduct administrators. This is what we do. To paraphrase the oft-uttered pronouncement of many a reality show contestant, “We’re not here to make friends.” That isn’t to say we don’t try, of course, and Olshak’s frame—FIRE vs. the student conduct profession—is disappointingly inaccurate.

Like FIRE President Greg Lukianoff and Associate Director of Legal and Public Advocacy Azhar Majeed, I’m a member in good standing of the Association for Student Conduct Administration (ASCA). FIRE has had a presence at ASCA’s annual conference for many years now, and I’ve presented a lecture on student rights there for the past three years. When presenting, I don’t simply grab the microphone and start haranguing the audience of student conduct administrators. Instead, I discuss the problems FIRE sees on campus, the types of cases that we’re working on, and the legal developments in the field, trying to offer as much in the way of pragmatic, “best practices” guidance to the administrators in the audience as possible. I recognize that, like Olshak, the majority of student conduct administrators want to do the right thing, and my job is to help them do so. That’s why we attend ASCA’s conference every year; that’s why we publish pamphlets like Correcting Common Mistakes in Campus Speech Policies; that’s why, in writing colleges and universities about their policies or practices, we always offer to discuss the issues as a first step. We’re a watchdog group, but we’re here to help.

Earlier this year, I spoke to Elizabeth Wheeler of Higher Education Legal Alert at length for an article shewrote about FIRE and our efforts to help campus administrators. I urge Olshak and all his colleagues in the field to read it in full. In contemplating whether FIRE is a “watchdog” or an “attack dog,” Wheeler concluded: “So you and FIRE actually share a goal. You both want what’s best for students. And here’s the thing: They’re specialists on campus rights—and want to share their expertise with you.”

In sharp contrast to Wheeler’s observations, then, Olshak stridently argues in a follow-up post that FIRE is “being exposed as an organization with a political agenda and as an organization that is either unable or unwilling to take a reasoned position in order to promote collegial discourse.” First, let’s dispatch the tired accusation of political bias, which seems to be the last refuge of FIRE critics. FIRE is a proudly nonpartisan organization. We defend students and faculty from across the political spectrum. Our work speaks for itself. Just in the past few months, we’ve successfully defended the right of Students for a Democratic Society to bring education theorist and former Weatherman Bill Ayers to Montclair State University without being burdened by unconstitutional security fees; we’ve defended the right of an art instructor at Gainesville State College to display artwork criticizing the Confederacy; and we filed anamicus curiae brief with a federal circuit court of appeals on behalf of a liberal student expelled for protesting plans to build a parking garage on his campus. Our brief was joined by 15 organizations, from the Cato Institute to the ACLU of Georgia, from the National Coalition Against Censorship to the National Association of Scholars.

So if FIRE is simply a collection of partisan hacks, as Olshak would have it, then we’re doing a pretty lousy job of advancing our secret political agenda. But again, this is an old, baseless charge, and one we’ve answered before at length. But apparently it’s just too tempting for FIRE’s critics to cast us as a partisan villain. So be it. At this point, anyone making this argument has simply decided to ignore the actual work we do, preferring instead their own fact-free caricature.

As far as being “either unable or unwilling to take a reasoned position in order to promote collegial discourse,” it is hard to take this charge seriously, either—particularly given Olshak’s own statements. “Collegial discourse”? Olshak didn’t bother to contact anyone at FIRE to discuss his concerns before launching into his public tirade. I can only presume he decided it was more fun to call FIRE a “one-trick pony” and accuse us of having some bizarre vendetta against him based on a conversation he reports having with one of our co-founders more than a decade ago. Olshak seriously believes that FIRE could be “targeting [him] because [he] dared to confront one of their co-founders,” and then, without irony, takes us to task for indulging in “grand conspiracies.” It’s too much: Olshak states that there’s “nothing collegial about FIRE,” then proceeds to praise and post an entry written by a colleague who says we wear “tinfoil hats.” And as far as “reasoned positions” are concerned, Olshak’s criticism of FIRE barely touches upon our OCR letter and blissfully ignores the substance and specifics of our arguments.

Criticism of FIRE’s May 5 Letter to OCR

Let’s turn now to Olshak’s specific criticism of FIRE’s May 5 letter to the Department of Education’s Office for Civil Rights.

In that letter, I argue that OCR’s April 4 “Dear Colleague” letter erodes due process protections on campus because it mandates that colleges and universities adjudicate sexual harassment and sexual assault charges by using a “preponderance of the evidence” standard. The preponderance of the evidence standard is our judiciary’s lowest standard—the same standard used in traffic court for non-criminal offenses—and FIRE believes that forcing schools to use this inexact standard when dealing with such serious charges is inappropriate, given the stakes for all involved.

Olshak disagrees vigorously, but at much less length than his more general critique of FIRE. Indeed, his specific criticism of FIRE’s OCR response is relatively brief in comparison. In that abbreviated space, however, Olshak makes a few points that I’m happy to answer here.

First, Olshak characterizes FIRE as believing that “OCR is advocating too strongly for these people, and that it is somehow a zero-sum game that means that the rights of accused students are being violated or abridged in order to create a responsive environment for the aggrieved party.”

Simply put, FIRE does not believe that creating a “responsive environment” for aggrieved students necessitates compromising the due process rights of students accused of sexual harassment and sexual assault. We think institutions can incorporate a “clear and convincing evidence” burden of proof while still maintaining an appropriately sensitive and responsive environment for victims of sexual harassment and sexual assault. We do not think Title IX’s requirement of “prompt and equitable” grievance procedures necessitates lowering the evidentiary standard, nor do we believe that an institution’s Title IX duty to “take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects” requires eroding student due process rights.

As I wrote in our letter:

While it is of course necessary for colleges and universities to address allegations of sexual harassment and sexual violence with all requisite purpose, seriousness, and speed, the rights of those accused cannot be sacrificed simply as a function of the accusation itself.

We do not conceive of due process rights generally as a “zero-sum game” (or any kind of “game,” for that matter), whereby every “gain” for one side is matched by an equivalent “loss” for the other. Rather, FIRE believes that reducing due process protections hurts both the accuser and the accused. Even if innocent, the accused student may now be found guilty of serious misconduct by our lowest evidentiary standard. Lowering this standard means that more innocent students will be found guilty, just as surely as raising the speed limit means more traffic deaths: it’s an outcome dependent on the structural mechanisms incorporated into the process. As a result of this “wider net,” students bringing accusations of harassment and assault are eventually hurt, as well. Because the lowered standard will result in more erroneous guilty findings, confidence in the integrity, reliability, and fairness of the judicial process will decrease over time. As students come to view the process with suspicion, student complainants may be denied the vindication guaranteed by a fair proceeding, regardless of the verdict. It’s important to remember, too, the reason we have procedural due process rights in the first place: to safeguard against human fallibility and bias. Olshak and OCR seem to believe that lowering the certainty of guilt needed to proceed with punishing a student for rape will somehow increase justice. But eliminating due process protections will instead produce the exact opposite of the intended result, as more innocent students will be found guilty.

Olshak next argues that “[n]ot once does FIRE acknowledge the rights of aggrieved parties to participate equitably in processes that matter just as much to them as they do to the accused students.” This is also untrue. In our letter, we applaud OCR’s clarification regarding the rights afforded to both the accuser and the accused:

The April 4 letter provides useful clarity regarding several aspects of the hearing process OCR expects recipient institutions to administer. FIRE welcomes OCR’s specific and explicit emphasis on the necessity of equal treatment for both the complainant and the accused student with regard to many aspects of the hearing process, including but not limited to access to information to be used in the hearing, access to counsel and participation of counsel, the ability to review the other party’s statements, access to pre-hearing meetings, and equal opportunities to present witnesses and evidence.

Additionally, FIRE is pleased that OCR recommends that recipient institutions provide accused students with a procedure for appeal and instructs recipient institutions to “maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.”

It is precisely because these steps improve the chances that both aggrieved and accused students will be able to “participate equitably,” as Olshak puts it, that we praise OCR’s guidance here.

In a similar vein, Olshak complains that FIRE is insufficiently cognizant of both the problem of sexual assault on campus and its victims. Olshak writes, “Not once did FIRE bother to acknowledge the systemic deficiencies found by the [Center for Public Integrity] study.” He quotes his colleague Dan Kast, Director of Student Judicial Affairs at Colorado State University – Pueblo, as stating: “FIRE completely glosses over any ‘legal or moral duty’ institutions have to provide timely protections for the complainant as ‘mere expediency’. Then again, perhaps victims are just ‘beyond the scope of FIRE’s mission’.”

Here, Olshak is correct: We did not acknowledge the systemic deficiencies catalogued in the Center for Public Integrity (CPI) study. While we are well aware of the study and its findings—indeed, I was interviewed by a CPI researcher about campus sexual misconduct policies for the study—our letter concerned the ways in which the OCR letter affects student rights. It did not concern the study’s exposure of the failure of student conduct systems to adequately punish those found guilty of sexual assault, nor the study’s documentation of the barriers faced by students victimized by sexual assault. As a civil liberties watchdog organization concerned about student rights on campus, our targeted focus was entirely appropriate. FIRE does not need to restate the problem; we need to help OCR and our nation’s colleges and universities solve it in a way that is fully accountable to the interests of all parties.

FIRE protects the civil liberties of all students, and we particularly serve as a much-needed voice for the accused. Many victim’s rights organizations advocate for victim’s rights exclusively: Security On Campus (SOC); Students Active for Ending Rape (SAFER); Break the Cycle; National Alliance to End Sexual Violence; National Center for Victims of Crime; National Coalition Against Domestic Violence; National Network to End Domestic Violence; National Resource Center on Domestic Violence; Family Violence Prevention Fund; Rape, Abuse & Incest National Network (RAINN), and many more. While these groups have their own focus, FIRE’s “one trick” is protecting student civil liberties, and we do so without apology.

Finally, and most depressingly, I am forced to address Brett Sokolow, whom Olshak quotes as stating that “all FIRE has done is to demonstrate that it could stand up for the rights of rapists everywhere.” I call this statement depressing because Sokolow is not only founder and president of the National Center for Higher Education Risk Management (NCHERM), he’s an attorney. As such, I would expect Sokolow to be entirely familiar with the importance our American conception of justice places on the rights of the accused.

In this country, we presume innocence before guilt. To ensure fairness, we afford those accused of misconduct basic due process rights— including, at the very least, “some kind of hearing,” to use Judge Henry Friendly’s famous phrase. In the spirit of these normative commitments to justice, FIRE’s May 5 letter argued that when adjudicating charges as serious as sexual misconduct, hearings should use a higher standard than simply “more likely than not.” As I wrote in our letter:

In cases involving allegations of criminal misconduct such as acts of sexual violence, the preponderance of the evidence standard fails to sufficiently protect the accused’s rights and is thus inadequate and inappropriate. Given the unequivocal value of a college education to an individual’s prospects for personal achievement and intellectual, professional, and social growth, OCR’s insistence that schools reduce procedural protections for those students accused of sexual harassment and sexual violence is deeply troubling. Because of the seriousness of these charges, virtually all institutions will punish those students found guilty with lengthy suspensions, if not immediate expulsion. The interest held by both the accused student and society at large in ensuring a correct and just result is therefore far greater than that implicated by a simple “monetary dispute,” and a higher standard of proof is demanded. It is unconscionable, given the prospect of life-altering punishment, to require only that those accused of such serious violations be found merely “more likely than not” to have committed the offense in question. (Citations omitted.)

This may be a lonely argument to make, but hey, such is the lot of civil liberties advocates, who are often required to make unpopular stands. If standing up for unpopular speech or those accused of terrible crimes was easy, we wouldn’t need a Bill of Rights.

Sadly, by deeming our advocacy as simply “standing up for the rights of rapists everywhere,” Sokolow has ignored the basic presumption of innocence, a fundamental tenet of the American judiciary. In conflating those accused of an act with those guilty of an act, Sokolow’s disdain for due process echoes the worst instincts of the angry mob.

Unfortunately, Sokolow’s disregard for student rights only confirms the necessity of FIRE’s work. After all, as “a law and consulting firm that is dedicated to best practices for campus health and safety,” NCHERM claims to have served over 800 clients as of 2009. If Sokolow believes that standing up for due process is indistinguishable from standing up for rape, he has no business advising colleges on how to achieve justice for students.

Conclusion

FIRE unequivocally stands by our practices generally and the points made in our May 5 letter specifically. We will continue to point out our concerns about the latest OCR guidance, and we will continue to raise awareness of the problems on campus. In so doing, of course, we will continue to answer critics — that’s par for the course. Our work as a watchdog will necessarily result in tension with campus administrators. Accordingly, FIRE fully expects that student conduct administrators won’t always appreciate our efforts or our methods. However, we believe that without our advocacy, student rights would not get the attention they deserve and require. We will continue to invite all campus administrators to work with us on behalf of student rights, to help campuses be places where free speech flourishes and campus judiciaries are effective, prompt, equitable, and even-handed.

Given the shocking manner in which Barnes was treated by Zaccari and VSU, as well as the school’s failure to undo the harm it caused to his ability to pursue an education, it came as no surprise to me that he chose to litigate. It likewise came as no surprise that the federal district court found many of his claims to be meritorious, and in particular held Zaccari personally liable for denying Barnes his basic rights. After all, if the violation of Barnes’ rights isn’t ripe for recovery of damages, I don’t know what case would be.

Now that Barnes’ case is on appeal before the Eleventh Circuit Court of Appeals, it will bear close observation in 2011, and perhaps beyond. The district court’s ruling, if upheld by the appellate court, will set a major precedent in defense of student rights on campus. Indeed, FIRE will be submitting an amicus (friend-of-the-court) brief before the Eleventh Circuit in January, positing our reasons why the court should rule for Barnes. The case is truly a vital one.

But let’s start at the very beginning of Barnes’ ordeal. Many Torch readers are likely familiar with the basic facts of the case, in which Barnes was expelled from Valdosta State for peacefully protesting Zaccari’s plan to spend $30 million of student fee money to construct two parking garages on campus. Opposing this expenditure of money on environmental grounds and suggesting what he saw as environmentally friendly alternatives, Barnes posted flyers on campus and sent e-mails to Zaccari, student and faculty governing bodies, and the Board of Regents. He also wrote a letter to the editor of VSU student newspaper expressing his concerns, and wrote to Zaccari personally to request an exemption from the mandatory student fee used to fund the project.

So far, all well and good, right? Just good, old-fashioned environmental activism and peaceful protesting, or so any reasonable person would think. However, after Barnes posted a collage of pictures on his Facebook page making fun of Zaccari and his pet project, Zaccari had Barnes “administratively withdrawn” from the university—via a note slipped under his dorm room door, no less! Zaccari claimed that Barnes represented a “clear and present danger” to Zaccari personally and to the VSU campus as a whole, despite a complete lack of evidence to back up this assertion. Appallingly, Barnes was never given notice of any charges against him, nor a hearing to defend his name, before the university took this drastic course of action. Instead, he found himself expelled from the university he called home for seemingly no good reason.

Following his expulsion, Barnes filed suit in January 2008 in cooperation with First Amendment attorney and FIRE Legal Network member Robert Corn-Revere. Barnes rightly pursued claims grounded on both his free speech rights and his due process rights.

In September of this year, the federal district court vindicated Barnes in a major way, ruling that because Zaccari expelled Barnes without notice or a hearing, he had violated Barnes’ constitutional right to due process, as well as the contract created between VSU and Barnes by the student handbook. With regard to the latter, the Board of Regents is on the hook for Barnes’ contractual claim, and it will have to defend itself again on appeal as to whether the deprivation of notice and a hearing constitutes a violation of VSU’s express terms of enrollment as laid out in its student handbook. The case does not look good for the Board on this issue.

Even more important from FIRE’s perspective is the ruling against Zaccari in his personal capacity. The court held:

The undisputed facts in this case show that prior to Zaccari’s withdrawal decision, Barnes did not (a) receive any notice of the allegations and charges against him or (b) have an opportunity to respond to those allegations and charges in some sort of hearing. Further, the undisputed facts show that Zaccari was the sole decision-maker in the withdrawal decision and, therefore, caused Barnes to be deprived of his rights to notice and a hearing or opportunity to respond. [Citation omitted.]

In detail that is worth reading in full in the opinion, the court found that Zaccari had essentially acted alone in depriving Barnes of basic due process, and that he had ignored the advice of his general counsel:

The court is unpersuaded by Zaccari’s argument that he is entitled to qualified immunity because he “sought out legal advice” from Gaskins and Neely and relied on their advice. The law is clearly established in the Eleventh Circuit that “due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” … Moreover, the court finds Zaccari’s assertion that he relied upon the advice of Gaskins and Neely disingenuous. The undisputed facts show that Zaccari ignored the lawyers’ warnings that withdrawing Barnes would require due process in executing his administrative withdrawal of Barnes. The court declines to accept Zaccari’s argument that because he sought legal advice from Gaskins and Neely, both of whom advised against the President’s withdrawal of Barnes, Zaccari is still entitled to qualified immunity even though he took action contrary to the advice. [Citations omitted.]

Based on these findings, the court denied Zaccari the defense of qualified immunity, a critical blow against his ability to defend himself in this lawsuit. The legal doctrine of qualified immunity shields government officials from personal liability for monetary damages for violating constitutional rights if their actions do not violate “clearly established law” of which a reasonable person in their position would have known. FIRE has warned public university administrators time and again that depriving students of their most basic rights, such as the right to freedom of speech or due process, is a violation of “clearly established law” for purposes of qualified immunity, and that they should expect to pay monetary damages out of their own pockets if they are caught doing so. (For more on the doctrine of qualified immunity and how it pertains to public university students’ basic individual rights on campus, see FIRE’s legal scholarship on the issue.)

The district court’s ruling in Barnes’ suit was therefore a cause for celebration to us at FIRE. While we have long maintained that the law is clearly established with respect to students’ free speech and due process rights on public university campuses, the ruling provides even more validation for our arguments. In fact, in light of this decision and other encouraging legal developments from the past year, FIRE sent out a certified mailing just this week to university presidents and general counsels at nearly 300 public institutions nationwide warning them that they place themselves in personal financial peril by violating students’ well established rights. Our mailing is our latest salvo in the fight to convince administrators to remove unconstitutional speech codes from the university setting and respect students’ freedom of expression.

With the case now on appeal before the Eleventh Circuit, Barnes’ lawsuit heads into 2011 with matters still to be resolved. Our amicus brief, to be filed in January, will attempt to convince the appellate court to uphold the lower court’s qualified immunity ruling, paving the way for Barnes to collect damages directly from Zaccari. The decision ultimately rendered by the Eleventh Circuit will be an important landmark for students’ rights on campus and their ability to vindicate those rights when they are violated. FIRE will be following the case closely in 2011, and we hope you will be too.

FIRE had high hopes for Martinez. On January 1, we announced our excitement about the Supreme Court’s acceptance of the case, on certiorari to the Ninth Circuit Court of Appeals. We believed that the Supreme Court would vindicate the First Amendment right to freedom of association for student groups at public universities. At the appellate level, the Ninth Circuit had held that the University of California at Hastings College of the Law (Hastings) may constitutionally deny recognition to its student chapter of the Christian Legal Society when it refuses to accept as members, eligible to run for leadership positions, students who disagreed with the organization’s core values.

The Christian Legal Society at Hastings wished to limit its members to those who subscribe to the group’s “Statement of Faith,” which, among other things, provides that members should engage in sexual conduct only within the confines of a marriage between a man and a woman. FIRE maintains, and maintained in our amici brief to the Supreme Court, that a group’s ability to select members who share its views and goals (no matter how offensive or unpopular) is fundamental to exercising its First Amendment right to expressive association.

Expressive association allows an organization to choose members that enhance its voice, and is therefore critical to safeguarding speech, especially the expression of those with minority or unpopular viewpoints. Hastings’ refusal to recognize the Christian Legal Society as a registered student organization because of its desire to limit members to those who subscribe to its Statement of Faith, we believe, is therefore a violation of the First Amendment.

Hastings believed that it should not have to allow its facilities to be used by a student organization that it believed discriminated against gays and against members of other religions. This view is somewhat understandable, except it ignores the fact that when a public university establishes a forum for student organizations to engage in speech, it may not penalize groups with certain viewpoints; all viewpoints must be accepted equally. Student organizational speech is private and does not bear the imprimatur of the university.

Moreover, as we wrote throughout the year, the Christian Legal Society’s right to exclude members who oppose its beliefs is not the kind of invidious discrimination that universities should prohibit in order to promote equality, but rather the kind of “discrimination” that lies at the heart of freedom of association. CLS does not discriminate on the basis of immutable characteristics like race or sexual orientation, but excludes members only on the basis of their beliefs. At the start of 2010, we explained that:

CLS does not prohibit gay students from voting membership or leadership positions if the gay student shares CLS’s view of homosexuality. CLS believes that effectively expressing the group’s view of homosexuality (or adultery, or premarital sex) requires those students who do engage in this conduct to be repentant about their actions, per CLS’s religious beliefs. That means that CLS isn’t discriminating based on a student’s immutable status, but rather that CLS is “discriminating” based on a student’s changeable beliefs and conduct. In a nutshell, CLS asks that its membership and leadership be comprised of students who actually believe in the group’s core tenets, in the same way that the College Democrats want their membership and leadership to be Democrats and the College Republicans expect their membership and leadership to be Republicans.

Before dawn on April 19, I camped out at the Supreme Court to try to attend the Martinez oral arguments. Unfortunately, because the case attracted so much attention from scholars, advocates, civil rights and civil liberties groups, and religious groups, there were too many people in line ahead of me, and I just missed being admitted into the majestic court on One First Street. Instead, I devoured the written transcript of oral arguments.

Far worse than my inability to attend oral arguments was the Court’s opinion in Martinez, issued in June. First, the Court declined to rule on the constitutionality of Hastings’ actual nondiscrimination policy, holding that both sides had stipulated to the fact that Hastings applied an “all-comers policy.” This stipulated policy, which required all student organizations to accept all students as voting members, is dramatically different from Hastings’ nondiscrimination policy, which prohibited only specific types of discrimination, such as discrimination on the basis of religion or sexual orientation. Hastings’ nondiscrimination policy burdened only certain groups’ ability to exercise their right to expressive association.

The Court then held that Hastings’ all-comers policy did not violate the First Amendment because it was a reasonable and viewpoint neutral restriction on expressive association. The Court not only imported a test (reasonableness and viewpoint neutrality) never before used to analyze expressive association claims, but the majority blithely ignored the possibility of “hostile takeovers,” where the all-comers policy would make groups expressing unpopular views susceptible to being taken over by those in the campus majority who are hostile to their message. The Court also seemed to indicate, contrary to precedent, that just because a university lends its facilities to student organizations, it somehow sponsors that speech.

We at FIRE are quite disappointed with the majority’s often sloppy analysis and undue deference to university administrators. As Greg remarked, “This is a loss for diversity and pluralism on campus, not a win.” The year of Martinez has not been a total loss, though. One positive outcome is that the case has inspired an important dialogue about First Amendment rights on campus. Greg delivered a speech in October about the state of freedom of association on campus, and his interview with Campus Progress was picked up by The Huffington Post. Hopefully, university administrators will realize that just because they are now constitutionally permitted to enact all-comers policies, it does not mean these are wise or good policies.

Image used under Creative Commons from bootbearwdc

The First Amendment rights of students at our nation’s public colleges and universities have long been afforded protection in the courts, including landmark Supreme Court decisions spanning several decades.[1]  The courts have time and again recognized that the university campus “is peculiarly the ‘marketplace of ideas,’”[2] that it plays a unique and critical role in society as a place where students enjoy robust speech rights and are free to discuss and debate a wide range of viewpoints in an endless search for truth and knowledge.  Upholding the freedom of speech on campus has been viewed as essential to the ability of the American university to contribute to the betterment and progress of society.

Yet our nation’s institutions of higher education, either in ignorace or defiance of the law, frequently violate the free speech rights of their students.  These violations take many different forms—too often, university administrators draft unconstitutional speech codes and apply them towards protected speech, censor student newspapers, shut down campus protests and speaker events, and more.  When university officials take these and similar actions, not only do they deprive students of some of their most cherished freedoms, they also contradict well established constitutional law principles.  Consider, for example, that every university speech code challenged in court to a final decision on the merits has been invalidated on its face.[3]

This Article argues that, given the protections the judiciary has given to expressive rights at public colleges and universities, courts should deny qualified immunity to university administrators when they violate students’ freedom of speech.  Qualified immunity shields government officials—acting under the color of state law—from personal liability under 42 U.S.C. § 1983, a federal civil rights statute that allows individuals who have been deprived of a federal statutory or constitutional right to collect monetary damages from the responsible official.[4]  Under Section 1983, public officials are entitled to qualified immunity if their actions do not violate “clearly established” law of which a reasonable person in the official’s position would be aware.[5]

This Article argues that the expressive rights of students at public colleges and universities are so well established in First Amendment jurisprudence that university officials depriving students of these rights cannot reasonably argue that they are entitled to qualified immunity protection.[6]  The author argues that officials should be denied qualified immunity for two types of First Amendment violations on campus: (1) the enactment of unconstitutional speech codes which by their terms encompass protected speech and (2) censorship and punishment of particular instances of protected student speech and expressive activity—referred to in this Article as “applied violations.”[7]  Both of these areas should be of grave concern to anyone who values the unfettered exchange of ideas at colleges and universities.  First, speech codes misinform students of their speech rights and discourage or “chill” student expression, preventing full discussion and debate from taking place on university campuses.  Second, applied violations contradict the decades of First Amendment case law, protecting the expressive rights of students in a university setting.

Piercing qualified immunity in such cases would give students the opportunity to collect monetary damages directly from university officials in their personal capacity.  By allowing wronged students to pursue damages, courts would significantly alter university officials’ incentives with respect to campus speech.  Faced with the prospect of paying damages out of their own pockets, administrators would logically have to reexamine their policies and practices and would be more likely to respect students’ speech rights.  These changes are imperative, because the current campus climate shows very little progress in spite of clear indications in the case law.  For instance, a 2009 report by the Foundation for Individual Rights in Education (FIRE) found that seventy-one percent of public colleges and universities surveyed maintained “at least one policy that both clearly and substantially restricts freedom of speech.”[8]  This is simply an unacceptable figure. It reveals that the case law, thus far, has failed to lead to widespread or systematic reform.  Consequently, this Article expresses the hope that denial of qualified immunity will change the mentality of college administrators, and ultimately promotes greater protection for freedom of speech.

Part I of this Article sets forth the framework for Section 1983 suits and discusses the legal standards which must be met by government officials seeking qualified immunity.  Part II argues that given the uniform results of case law involving facial challenges to speech codes, university officials should not receive qualified immunity when they are responsible for enacting or maintaining an unconstitutional speech code.  Part III argues that administrators should, other than in some exceptional circumstances, be denied qualified immunity for applied violations of students’ speech rights, as the unlawfulness of these actions should be apparent to administrators in light of Supreme Court and federal circuit court precedents spanning decades.  The Article concludes with some final thoughts on the import of piercing qualified immunity.

I. Section 1983 and Qualified Immunity

A. Availability of Section 1983 Suits

When an individual has been deprived of a federal statutory or constitutional right by reason of a government official’s conduct, he or she has recourse to a Section 1983 suit.  This cause of action comes from the federal Civil Rights Act of 1871, which provides, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress . . . .”[9]  Section 1983 provides a powerful weapon for those who have been harmed in the exercise of their federal statutory or constitutional rights. It allows plaintiffs to pursue injunctive and declaratory relief as well as monetary damages,[10] thus allowing them to choose among potential remedies for that which best addresses their particular case.

Section 1983’s requirement of action under color of state law means that the government official must have exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”[11]  The United States Supreme Court has held that if an official’s conduct satisfies the state action requirement of the Fourteenth Amendment, such conduct also constitutes action under color of state law and will support a Section 1983 suit.[12]  To constitute state action, “the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.”[13]  Thus, a public official acts under color of state law when he undertakes the action in his official capacity or pursuant to his responsibilities under state law.[14]

Section 1983 suits may be brought against government officials in either their personal capacity or their official capacity.  A personal capacity suit aims to impose personal liability upon a public official for actions taken under color of state law,[15] whereas an official capacity suit “generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.”[16]  The Court has stated that “[a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity . . . .  It is not a suit against the official personally, for the real party in interest is the entity.”[17]  Whereas a damages award against an official in his personal capacity is executed against the official’s personal assets, a plaintiff seeking damages in an official capacity suit looks to recover from the government entity itself.[18]  Additionally, a plaintiff in an official capacity suit must do more than demonstrate the deprivation of a federal right by a government official acting under color of state law; he or she must also demonstrate that the government entity was a “moving force” behind the deprivation and that the entity’s “policy or custom” played a part in the violation of federal law.[19]  Finally, an official named as a defendant in an official capacity suit cannot use qualified immunity as a defense, but rather can only avail him or herself of the sovereign immunity that the entity, as an entity, might possess.[20]

A plaintiff seeking monetary damages under Section 1983 for violation of a federal right by a state government official, such as a public college or university administrator, must pursue a personal capacity suit rather than an official capacity suit.[21]  This is due to the fact that “absent waiver by the State or valid congressional override, the Eleventh Amendment bars damages actions against a State in federal court,”[22] and this bar “remains in effect when state officials are sued for damages in their official capacity.”[23]  The latter point reflects the reality that a judgment against a public official in his official capacity imposes liability on the entity that he represents.[24]  The Court has made clear that Section 1983 does not constitute a valid congressional override for purposes of Eleventh Amendment immunity,[25]thereby making damages unavailable in a Section 1983 suit against a state official in his or her official capacity.  Therefore, plaintiffs seeking monetary damages for a state official’s act must pursue a personal capacity suit.

B. The Law Governing Qualified Immunity

When facing a Section 1983 suit in his or her personal capacity, one of the defenses available to a state official is qualified immunity under the Eleventh Amendment.[26]  Qualified immunity shields government officials performing discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[27]  As explained by the Supreme Court, the doctrine of qualified immunity balances two important competing interests: first, the public interest in holding government officials accountable when they act irresponsibly or abuse their power, and second, the public interest in shielding officials from the distraction of trial and potential liability when they perform their duties reasonably.[28]  The Court has recognized that “substantial costs attend the litigation of the subjective good faith of government officials,” including “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service,” all of which can be disruptive of the ability of government to function effectively.[29]  At the same time, the Court has made clear that “[b]y defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct.  The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts.”[30]

The Supreme Court has adopted a two-part test for qualified immunity.  The first prong asks whether, taken in the light most favorable to the party asserting injury, the facts alleged demonstrate a violation of a statutory or constitutional right.[31]  The second inquiry is whether that right was “clearly established” at the time of the government official’s alleged conduct, such that it would have been clear to a reasonable person that the conduct was unlawful under the circumstances of the case.[32]  Under the second prong, the right allegedly violated needs to be defined at “the appropriate level of specificity” before a court can determine whether it was clearly established.[33]  Moreover, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”[34]  This inquiry entails consideration of both clearly established law and the factual information possessed at the time, and therefore must be “undertaken in light of the specific context of the case, not as a broad general proposition.”[35]

The Supreme Court has cautioned that, with respect to what constitutes clearly established law, it is not necessary that “the very action in question [has] previously been held unlawful,” but rather that “in the light of pre-existing law the unlawfulness must be apparent.”[36]  Consequently, “general statements of the law are not inherently incapable of giving fair and clear warning” and in many instances “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the ‘the very action in question has [not] previously been held unlawful.’”[37]  This is a crucial point and one that will carry great significance through much of this Article as the author discusses the issue of qualified immunity in First Amendment cases arising in higher education.  Of course, as the Court has recognized, some violations are so obvious that a prior ruling is not required to establish the unlawfulness of the action.[38]

Regarding the types of decisional law needed to create clearly established law, the federal circuits are currently split.[39]  While the Supreme Court has not settled the circuit split to this point,[40] it has indicated that government officials must ultimately look to “cases of controlling authority in their jurisdiction” or “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”[41]

Previously, under Saucier v. Katz,[42] the Court had mandated that courts apply the two-part test in the order indicated above, requiring courts to first decide whether the facts alleged demonstrated the violation of a federal right before they could proceed to the second question.[43] Under Saucier, if a court determined that no violation had been shown, there was no need to analyze whether the right in question had been clearly established at the time.[44]  However, in its 2009 decision in Pearson v. Callahan, the Court overruled Saucieron this point, holding that the “rigid order of battle” imposed by Saucier should no longer be mandatory and that lower courts should instead be allowed to use their discretion to decide the order in which to proceed with the test for qualified immunity.[45]  This decision appears to have come in response to significant amounts of criticism of the Saucier protocol both from the lower federal courts and from within the Court itself.[46]

In Callahan, the Court reasoned that Saucier’s mandatory rule “sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,” as in cases “in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”[47]  Moreover, it reasoned that “[u]nnecessary litigation of constitutional issues also wastes the parties’ resources,” defeating one of the central purposes of the qualified immunity doctrine by “‘forc[ing] the parties to endure additional burdens of suit . . . when the suit otherwise could be disposed of more readily.’”[48] Finally, the Court asserted that although the first prong of the Saucier protocol was intended to promote the development of constitutional precedent, in particular in relatively unsettled areas of the law, the cases following Saucier had largely failed to make a meaningful contribution to the development of precedent.[49]  Thus, according to Callahan, the Saucier protocol often failed to serve its primary purpose.  The Court therefore held that the Saucier protocol is no longer mandatory and that the order in which a court applies the two-part test for qualified immunity is now left instead to the discretion of the particular court.[50]

II. Qualified Immunity and Speech Codes

Having set the legal framework for qualified immunity in Section 1983 suits, this Article turns to an analysis of the case law on campus speech codes.  As this section discusses, every speech code that has been litigated to date has been struck down by a court of law—all within approximately the past two decades—thus providing university administrators with clear indication that they are in violation of the law when they draft and maintain such policies.

A. The Case Law on Speech Codes

i. What is a Speech Code

Speech codes are “university regulations prohibiting expression that would be constitutionally protected in society at large,”[51] or “any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech.”[52]  In other words, by their very terms, they infringe upon the right of university students to engage in constitutionally protected expression.[53]  Courts have repeatedly found them to be doctrinally flawed under the First Amendment owing to their vagueness,[54] overbreadth,[55] or both.

Speech codes abound at colleges and universities, and just a few examples are illustrative of the problems they present.  One policy at Johns Hopkins University prohibits any and all “[r]ude, disrespectful behavior,”[56] thus covering much protected speech, moreover, in patently vague language.  Similarly, Texas A&M University maintains a policy on “Student Rights and Obligations” which prohibits students from violating others’ rights to “respect for personal feelings” and “freedom from indignity of any type.”[57]  San Jose State University’s policy on “Harassment and/or Assault” bans “verbal remarks,” “publicly telling offensive jokes,” and even “[p]ractical jokes and pranks,”[58] presenting fundamental vagueness and overbreadth concerns.

Still other examples are revealing.  New York University’s “Anti-Harassment Policy” expressly prohibits “insulting, teasing, mocking, degrading or ridiculing” another individual, as well as “inappropriate . . .  jokes.”[59]  Murray State University in Kentucky lists “[t]elling sexual jokes or stories,” “[l]ooking a person up and down (elevator eyes),” and even “[d]isplaying sexual and/or derogatory comments about men/women on coffee mugs” as examples of sexual harassment.[60]  Lastly, Northeastern University bans students from using the school’s information systems or facilities to “[t]ransmit or make accessible material, which in the sole judgment of the University” is “offensive” or “annoying.”[61]  These and other existing speech codes suffer from the same First Amendment flaws found in previously challenged speech codes, and as a result continue to impinge upon student speech rights.

ii. The Decisions: From Doe to Smith

The first such case, Doe v. University of Michigan,[62] was decided in 1989.  In Doe, a graduate student challenged the University of Michigan’s “Policy on Discrimination and Discriminatory Harassment,” which prohibited, in pertinent part, “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex,” and other listed traits and that “[c]reates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.”[63]  The student claimed that, under the terms of the policy, he feared that “certain controversial theories positing biologically-based differences between sexes and races might be perceived as ‘sexist’ and ‘racist’ by some students” and that therefore “his right to freely and openly discuss these theories was impermissibly chilled.”[64]

The federal district court found the University of Michigan policy to be both facially overbroad[65] and vague.[66]  Finding the plaintiff student’s fear of punishment for engaging in legitimate academic discussion in the classroom to be credible, based in part on previous instances in which the university had applied the policy against students’ academic discourse, the court held that the policy was overbroad “both on its face and as applied.”[67]  Regarding the vagueness problem, the court reasoned that terms such as “stigmatizes” and “victimizes” were “general and elude[d] precise definition” and that the university “never articulated any principled way to distinguish sanctionable from protected speech,” forcing students to “guess at whether a comment about a controversial issue would later be found to be sanctionable.”[68]  Because the policy could not be given a constitutionally permissible reading, the court permanently enjoined the university from enforcing it against any verbal expression.[69]

Two years after Doe, the second speech code decision was handed down in UWM Post, Inc. v. Board of Regents of the University of Wisconsin.[70]  In that case, a federal district court invalidated a discriminatory harassment policy prohibiting “racist or discriminatory comments, epithets or other expressive behavior” if such conduct intentionally “demean[ed] the race, sex, religion,” or other listed characteristics of an individual or “[c]reate[d] an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.”[71]  As was the case in Doe, the policy was held to be both overbroad and vague on its face.[72]  In reaching this result, the court rejected the university’s argument that the policy was aimed only at verbal conduct which met the “fighting words” exception to the First Amendment,[73] reasoning that the policy “regulates discriminatory speech whether or not it is likely to provoke” a violent response and “covers a substantial number of situations where no breach of the peace is likely to result,” thus extending beyond the very limited scope of the fighting words doctrine.[74]

In 1992, the U.S. Supreme Court decided R.A.V. v. St. Paul, a case that, while not directly involving a challenge to a speech code, carries major implications for speech codes.[75]  In R.A.V., the Court struck down a city ordinance which prohibited placing, on public or private property, “a symbol, object, appellation . . . which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”[76]  Even accepting the city’s assertion that the ordinance reached only “fighting words” and therefore did not proscribe expression in violation of the First Amendment, the Court held that the ordinance impermissibly singled out expression on the basis of the subjects addressed.[77] Because the ordinance only prohibited speech involving particular personal characteristics, it unconstitutionally discriminated against speech on the basis of content.[78]  R.A.V. importantly establishes that even within unprotected categories of speech, the First Amendment does not allow the state to ban only those viewpoints it disfavors.

Three years after R.A.V., the Sixth Circuit Court of Appeals became the first federal circuit court to decide a speech code case in Dambrot v. Central Michigan University.[79]  Once again, the challenged speech code took the form of a discriminatory harassment policy, prohibiting “any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by . . . demeaning or slurring individuals . . . or using symbols, [epithets] or slogans that infer negative connotations about the individual’s racial or ethnic affiliation.”[80]  Finding this policy to be both overbroad and vague on its face,[81] the Sixth Circuit stated, “[i]t is clear from the text of the policy that language or writing, intentional or unintentional, regardless of political value, can be prohibited upon the initiative of the university.”[82]  In addition, it held that, even assuming the university’s argument that the policy prohibited only fighting words to be correct, the policy “constitutes content discrimination because it necessarily requires the university to assess the racial or ethnic content of the speech.”[83]

The same year as Dambrot, a California state court handed down the first speech code decision involving a private university, Corry v. Leland Stanford Junior University.[84]  The suit was brought under California’s “Leonard Law,” which affords private university students in California the same free speech rights as students attending public institutions.[85]  It challenged Stanford University’s policy on harassment by “personal vilification,” which barred expression “intended to insult or stigmatize an individual . . . on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.”[86]  The state court rejected the university’s argument that the policy merely banned the use of fighting words, on two grounds. First, it found that the policy, even if limited to the fighting words exception, banned only those fighting words based on enumerated categories such as race and gender, while permitting fighting words which did not address the enumerated topics.[87]  This, it held, restricted verbal conduct “based on the content of the underlying expression” in violation of the university’s obligation of content neutrality.[88]  Second, it found that the policy in fact banned expression beyond the fighting words exception, making the policy facially overbroad.[89]

In the years following Doe, UWM Post, Dambrot, and Corry, additional legal challenges resulted in more speech codes being invalidated.  In Booher v. Board of Regents of Northern Kentucky University,[90] a federal district court struck down a sexual harassment policy prohibiting expression which “unreasonably affects your status and well-being by creating an intimidating, hostile, or offensive work or academic environment.”[91]  The policy, the court held, encountered problems of vagueness as well as overbreadth.[92]

In 2003, a federal district court’s decision in Bair v. Shippensburg University[93] resulted in the defeat of a speech code with several unconstitutional provisions.  Specifically, Shippensburg University’s Code of Conduct mandated that students were to speak in a manner that “does not provoke, harass, intimidate, or harm another” and prohibited “acts of intolerance.”[94] Additionally, the university’s “Racism and Cultural Diversity Statement” defined racism to include “any activity . . . that causes the subordination, intimidation and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age,” and required students to “mirror[ ]” the school’s commitment to “racial tolerance, cultural diversity and social justice” in their “attitudes and behaviors.”[95]  Despite the university’s proffered justification that the various provisions were “merely aspirational and precatory,” the court found otherwise and ultimately enjoined the university from enforcing them on the grounds of overbreadth.[96]

The next speech code decision came the following year in Roberts v. Haragan.[97] At issue in that case was a speech regulation forbidding the use of “physical, verbal, written or electronically transmitted threats, insults, epithets, ridicule or personal attacks” directed at individuals based on personal characteristics or group membership, even including “ideology, political view or political affiliation.”[98] Once again the policy was struck down as overbroad, because it reached “much speech that, no matter how offensive, is not proscribed by the First Amendment.”[99]

Three years later, in College Republicans v. Reed, a federal district court enjoined the enforcement of a San Francisco State University policy requiring students to act in accordance with the university’s “goals, principles, and policies” as well as a policy requiring students “to be civil to one another.”[100] In issuing the preliminary injunction, the court held that the overbreadth challenges to both speech codes were likely to prevail on the merits.[101] In addition, the court held that another regulation banning “[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct” could not be read and enforced in a manner encompassing all forms of “intimidation” and “harassment.”[102] Recognizing that those two terms, standing alone, could be applied against protected speech, the court restricted the application of this policy to only those sub-categories of intimidation and harassment that “threaten[ ] or endanger[ ] the health or safety of any person.”[103]

The second speech code decision to be handed down by a federal circuit court, DeJohn v. Temple University,[104] came in 2008.  At issue in DeJohn was a sexual harassment policy which barred “expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.”[105]  The Third Circuit Court of Appeals found the policy to be facially overbroad, owing to a number of flaws.  First, it noted that under the policy’s “purpose or effect” prong, “a student who sets out to interfere with another student’s work, educational performance, or status, or to create a hostile environment would be subject to sanctions regardless of whether these motives and actions had their intended effect.”[106]  This failed the requirement that a school “show that speech will cause actual, material disruption before prohibiting it.”[107]

Moreover, the Third Circuit reasoned that, by virtue of using terms such as “hostile,” “offensive,” and “gender-motivated,” which were not clearly self-limiting, the policy’s language was “sufficiently broad and subjective” that it “could conceivably be applied to cover any speech of a gender-motivated nature the content of which offends someone.”[108]  The court emphasized that “[t]his could include ‘core’ political and religious speech, such as gender politics and sexual morality” and that, accordingly, the policy “provides no shelter for core protected speech.”[109] Based on the policy’s overbroad reach, the Third Circuit permanently enjoined the university from re-implementing or enforcing the policy.[110]

In Lopez v. Candaele,[111] decided in 2009, a California federal district court invalidated a sexual harassment policy at the Los Angeles Community College District which prohibited conduct having the “purpose or effect of having a negative impact upon the individual’s work or academic performance” and defined sexual harassment to include “insulting remarks,” “intrusive comments about physical appearance,” and “humor about sex.”[112]  Like the Third Circuit in DeJohn, the Lopez court held that the policy’s focus on the purposeand effect of verbal conduct rendered the policy unconstitutionally overbroad.[113]  The court found that the policy by its terms reached a substantial amount of protected speech which is “merely offensive to some listeners” and, significantly, reasoned that although “it may be desirable to promote harmony and civility, these values cannot be enforced at the expense of protected speech under the First Amendment.”[114] In a subsequent ruling, the court denied LACCD’s motion to reconsider its decision, upholding the injunction it had issued against enforcement of the policy.[115]

The most recent speech code decision is Smith v. Tarrant County College District.[116] In Smith, two student plaintiffs challenged, among other provisions, their college’s policy regarding “cosponsorship,” which forbade students and faculty from holding any campus events, including expressive activity, in association with any “off-campus person organization.”[117] The court noted that this policy prevented students “from speaking on campus on issues of any social importance” and from engaging in “the most basic forms of expressive activity. . .based on no more than the fact that the expression might depend on an off-campus organization for planning or management, is advertised as cosponsored by an off-campus organization, or otherwise substantially involves an off-campus organization.”[118] It therefore declared that it could not “imagine how the provision could have been written more broadly” and ruled it “unconstitutional on its face.”[119] Smith became the latest decision to invalidate a speech code on its face, thus joining a uniform line of cases stretching more than two decades and originating with Doe in 1989.

B. University Officials Should be Denied Qualified Immunity in Speech Code Cases

In spite of the case law, speech codes have proliferated on college campuses.  In fact, the Foundation for Individual Rights in Education’s most recent annual speech code report found that 266 out of 375 colleges and universities surveyed, or 71 percent, maintained “at least one policy that both clearly and substantially restricts freedom of speech.”[120]  Significantly, the report found that this percentage remained the same among public colleges and universities surveyed,[121] despite the fact that public institutions are legally bound by the guarantees of the First Amendment.  Thus, the case law has not stemmed the tide of speech codes, as officials at public universities continue to fail to respect students’ free speech rights.

Given the uniform defeat of speech codes in the courts over approximately the past two decades, including two federal circuit court decisions in Dambrot and DeJohn, courts should deny qualified immunity to public university administrators being sued in their personal capacities under Section 1983 for drafting and maintaining speech codes.  The two-part test for qualified immunity asks, first, whether the facts alleged, taken in the light most favorable to the party asserting injury, demonstrate violation of a statutory or constitutional right[122] and, second, whether that right was “clearly established” at the time of the government official’s alleged conduct, such that it would have been clear to a reasonable person that the conduct was unlawful under the circumstances of the case.[123]

i. Violation of a Constitutional Right

The act of depriving public university students of their freedom of expression by maintaining a doctrinally flawed speech policy is a constitutional violation for the purposes of the first prong.  Whether or not a speech code has ever been enforced, its very existence will chill expression on campus.[124]  The Supreme Court has made clear that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”[125]  It has held that “[t]he Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere,”[126] and that consequently “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of government regulations that fall short of a direct prohibition against the exercise of First Amendment rights.”[127]

Moreover, that the freedom of speech guaranteed by the First Amendment is one of the most essential and sacred rights belonging to Americans makes the constitutional violation all the more blatant.  The Court has eloquently expressed the “need to preserve inviolate the constitutional rights of free speech, free press and free assembly” because “[t]herein lies the security of the Republic, the very foundation of constitutional government.”[128]  It has made clear that “‘precision of regulation must be the touchstone in an area so closely touching our most precious freedoms,’” in order that “[t]he danger of [the] chilling effect upon the exercise of vital First Amendment rights” be avoided.[129]  Regarding the particular importance of free expression in college, the Court has stated that “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”[130]  With these pronouncements in mind, it is patent that the drafting and implementation of speech codes curtailing a wide swath of protected speech is a constitutional violation.

ii. Clearly Established Law

With respect to the second element of the qualified immunity test, the law regarding speech codes is by now clearly established.  The case law, from Doe in 1989 to Smith in 2010, is remarkable for its consistent results, as the courts have on each occasion rejected the implementation of a doctrinally flawed speech code and acted to uphold campus speech rights.[131]  The Third Circuit’s 2008 decision inDeJohn is perhaps the most important among the recent cases.  As a federal circuit court opinion which spoke forcefully of students’ speech rights, DeJohn should send an unequivocal message, once and for all, to university administrators that they risk personal liability by maintaining speech codes.  In other words, DeJohn should set the final nail in the coffin for the argument that the judiciary has not provided a clear indication of the legal tenability of university speech codes.

It is true that there have been a finite number of speech code decisions to date and that not every single type of speech code imaginable has been litigated.[132]  However, as discussed in the previous section,[133] in order for a government official’s conduct to constitute violation of clearly established law, it is not necessary that the precise action have been held unlawful by a prior decision.  Rather, the law regarding qualified immunity requires that “in the light of pre-existing law the unlawfulness must be apparent.”[134]  The Supreme Court has held that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the ‘the very action in question has [not] previously been held unlawful.’”[135]  Elsewhere, the Court has stated that “officials can still be on notice that their conduct violates established law even in novel factual circumstances . . . .  Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established,they are not necessary to such a finding.”[136]

Under these principles, the fact that courts have overturned speech codes on all eleven occasions that they have been litigated to a final decision—and, conversely, have not upheld them on a single occasion[137]—should convey to any reasonable university administrator that speech codes are legally untenable at public colleges and universities.  The courts have made clear that a university speech regulation, which is facially vague or overbroad, or both, will be struck down on constitutional grounds.[138]  It is an outrage—and a violation of clearly established law—for colleges and universities to continue to maintain overbroad or vague speech policies, as the unlawfulness of such practice should be apparent on its face.[139]  Administrators should be aware that student speech at public institutions is generally entitled to the full protection of the Constitution and therefore should not be proscribed by university policy, except in those narrow instances where it would meet one of the prohibited categories under the First Amendment.[140]  Freedom of speech should be the norm, not the exception, on college campuses.

Proponents of maintaining qualified immunity for university officials in speech code challenges will perhaps argue that it is difficult to know or anticipate whether a particular policy is vague or overbroad.  However, the Supreme Court, in First Amendment jurisprudence spanning several decades, has provided sufficient guidance regarding the standards for vagueness and overbreadth, as have lower federal courts.[141]  The Court has stated that a statute or regulation is unconstitutionally vague when “men of common intelligence must necessarily guess at its meaning, “ and that in order to avoid the vagueness problem, a statute or regulation must “give adequate warning of what activities it proscribes” and “set out ‘explicit standards’ for those who must apply it.”[142]  Similarly, the Court has indicated that a statute or law is void for overbreadth when it “offends the constitutional principle that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms,’”[143] or, more simply, “reaches a substantial amount of constitutionally protected conduct.”[144]

Federal courts have made clear the reach of overbreadth and vagueness specifically in the context of speech codes.  In Booher, for instance, the court held a sexual harassment policy to be unconstitutionally vague because it “fail[ed] to give adequate notice regarding precisely what conduct is prohibited” and “delegate[d] enforcement responsibility with inadequate guidance.”[145]  It also held the same policy to be overbroad for “fail[ing] to draw the necessary boundary between the subjectively measured offensive conduct and objectively measured harassing conduct,” creating “the impression that speech of a sexual nature that is merely offensive would constitute sexual harassment.”[146]  Similarly, Doe states that a statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.”[147]

The pronouncements of the Supreme Court and lower courts make it unreasonable for administrators—whose primary work duties require a proper understanding of students’ rights and whose training and education provide such knowledge—to argue that they should not be expected to know which types of policies run afoul of the doctrines of overbreadth or vagueness.  Rather, these doctrines have been sufficiently defined and illustrated in the case law, and in particular, the Supreme Court’s guidance cannot simply be ignored by university administrators.

Moreover, certain forms of speech codes have been invalidated on multiple occasions, making the law especially clear with respect to these types of policies.  First and foremost, these include harassment policies encompassing speech beyond the proper standard for student-on-student (or peer) harassment,[148] as the misapplication of harassment law has historically been one of the major factors in the prevalence of speech codes.[149]  Additionally, these include policies prohibiting “demeaning” or “stigmatizing” speech,[150] policies mandating that all student speech be “civil” or “tolerant,”[151] and policies requiring students to adopt university-approved viewpoints or beliefs.[152]  When a university implements a speech code falling under any of these categories, the violation of clearly established law is all the more apparent.  It is disingenuous at best, and plainly ignorant at worst, for a public university which has a policy mirroring one of these codes to claim that it was unaware of the unlawfulness of its policy.  Therefore, a court deciding a constitutional challenge to such a policy should be even more inclined to pierce qualified immunity.

Significantly, in addition to the judiciary, both the legislative and executive branches of the federal government have in recent years affirmed the importance of upholding the freedom of speech on college campuses.  By lending their respective voices to the issue, they have joined the courts in making the preeminence of free speech rights even clearer and thus making the rejection of qualified immunity in speech code cases all the more warranted.

Congress has twice in the past twelve years issued “sense of Congress” resolutions calling for increased protection of students’ speech rights, as part of its reauthorizations of the Higher Education Act.[153]  The first such “sense of Congress” resolution came in the 1998 amendments to the Act and stated that no college or university student “should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction” at any institution receiving funding under the Act.[154]  In the second “sense of Congress” resolution, which came in the 2008 amendments to the Act, Congress reiterated that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.”[155]  The “sense of Congress” provisions are legally non-binding.[156]  However, the fact that Congress spoke twice within ten years in favor of campus speech rights adds to the authority of the speech code case law and further signals to university administrators that they must tread carefully when enacting policies regulating student speech.

Within the executive branch, the Department of Education’s Office for Civil Rights (OCR) sent a strongly worded “Dear colleague” memorandum in 2003 to federally funded colleges and universities to clarify the scope and meaning of federal harassment regulations.[157]  In the letter, OCR made clear that its harassment regulations “are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution” and therefore “do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.”[158]  This nullifies perhaps the most common rationale used by university administrators to justify their speech codes: compliance with harassment law.[159]  OCR also emphasized in the letter that “the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment” on a university campus and that allegations of harassment must be “evaluated from the perspective of a reasonable person in the alleged victim’s position.”[160]  This point is an important one in that it responds to a frequent problem in the way colleges and universities seek to address and prevent harassment—the tendency to target expression which a few sensitive individuals may find offensive or disagreeable.[161]  By issuing policy guidance in favor of free expression, OCR has made its position clear regarding any tension between harassment law and students’ free speech rights.  This should send a strong message to university administrators about the legitimacy of their speech codes, since the abuse of overbroad harassment rationales has been a leading factor in the prevalence of speech codes.  Combined with the two statements from Congress, the OCR memorandum provides additional authority to the speech code decisions and should leave even less doubt about the state of the law.

Finally, speech codes have been the subject of much criticism both in legal scholarship[162] and in popular literature and publications,[163] as commentators have long argued that they are legally indefensible on public college campuses.  These varied voices add to the unequivocal message sent by the courts, by Congress, and by OCR, making the clarity of the law even more comprehensive.  Piercing qualified immunity therefore makes logical sense in view of the combined strength of the voices that have rallied against the existence of speech codes on campus.[164]

III. Qualified Immunity and Applied Violations

The second category of violations of clearly established law regarding students’ speech rights is the censorship and punishment of specific instances of protected speech and expressive activity.[165]  These violations take many different forms, both in terms of the policies enforced and the modes of expression being restricted.  The end result in each case, though, is that the right of students on public college campuses to engage in constitutionally protected speech is violated.

Because applied violations take many different forms and revolve around almost limitless factual scenarios, the author does not argue in this section that a court should deny qualified immunity in every instance of an applied violation.  It would be nearly impossible—and ultimately beyond the scope of this article—to catalogue and analyze every imaginable applied violation of students’ speech rights.  Rather, the author’s argument is that in the vast majority of such cases, courts should find that the university’s action contradicts clearly established law.

Unlike speech codes, which are on their face unconstitutional at public institutions due to their over breadth or vagueness and have been invalidated in every case to this point,[166] some applied violations may not have been previously shown to be unlawful in the case law applicable to a particular jurisdiction.  Whether a court pierces qualified immunity in a given case will depend on whether the particular issue has been addressed in previous circuit decisions, and if no on-point legal authority exists, on whether the legal principles established by Supreme Court case law and persuasive authority nevertheless call for denial of qualified immunity.[167]  Thus, a court may determine that a particular applied violation, though inconsistent with the First Amendment, has not been sufficiently adjudicated to create clearly established law nor has been shown to be untenable by the Supreme Court’s First Amendment jurisprudence.  Therefore, the author argues that courts should in most (but not necessarily all) cases where a student challenges an applied violation deny qualified immunity to a university administrator seeking to avoid personal liability.

In this section, the author first discusses some illustrative recent examples of applied violations.  Second, the author sets forth the Supreme Court’s jurisprudence regarding college students’ expressive rights, in which the Court has established that they possess robust speech rights.  These cases along with precedential decisions from the federal circuits make clear that censorship and punishment of student expression, instead of representing the norm, is only permissible in narrow, exceptional circumstances.  Lastly, the author highlights a few cases in which courts have denied qualified immunity to university administrators for applied violations of students’ speech rights.

A. Recent Examples of Applied Violations

A brief discussion of some recent examples of applied violations will demonstrate that such violations have major consequences for campus speech.  In this section, the author includes examples from both private and public institutions despite the fact that private universities are not legally bound by the requirements of the First Amendment and private university administrators are not state officials subject to Section 1983 suits.  These examples are included to illustrate the often-egregious nature of such actions and the varied forms they take.

In 2004, the University of New Hampshire evicted a student from his dormitory for posting satirical flyers joking that female residents of the dormitory could lose weight by using the stairs rather than the elevators.[168]  Despite the obvious humorous intent of the flyers, the university found the student guilty of violating policies on harassment, affirmative action, and disorderly conduct and, in addition to removing him from his dormitory, subjected him to disciplinary probation and mandatory meetings with a counselor.[169]

Indiana University – Purdue University Indianapolis found a student-employee guilty of racial harassment merely for reading a scholarly book during his work breaks, on the basis that another employee found the subject matter of the book as well as images on its front cover to be offensive.[170]  The university failed to consider the purely innocuous nature of the student-employee’s actions and instead justified its decision by stating that he had “demonstrated disdain and insensitivity” toward his co-workers by openly reading a book with an “inflammatory and offensive topic.”[171]

DePaul University shut down a student group’s “affirmative action bake sale,” a peaceful form of campus protest, in 2006 because the event allegedly violated the school’s discriminatory harassment policy.[172]  Making this a clear example of administrative censorship of a disfavored viewpoint, DePaul administrators initially told the student group that the event was being shut down because it was taking place at an inappropriate location, even though they allowed another student group to set up a protest table at the same location a week later, and then subsequently justified their decision under the harassment policy.[173]

In another student protest case, Valdosta State University in Georgia expelled a student in 2007 for peacefully protesting the university’s decision to construct additional parking garages on campus based on his environmental concerns.[174]  The student created an online collage of pictures satirizing the university president and criticizing the university’s plan, and as a result received a notice of administrative withdrawal labeling him a “clear and present danger” to the campus.[175]  Moreover, the student was told that he would only be readmitted to the university if he submitted certifications of his mental health and on-going therapy.[176]

Lastly, the University of North Carolina-Chapel Hill, on two separate occasions over a two-year period, refused to allow religious student organizations to limit membership to those who shared in the groups’ religious beliefs, thereby infringing upon the groups’ freedom of expressive association.[177] On both occasions, the university argued that excluding students who did not share in the groups’ beliefs violated the school’s nondiscrimination policies,[178] despite the fact that the forced inclusion of such students would have fundamentally altered the groups’ religious nature by preventing them from associating around shared beliefs and limiting their ability to disseminate a consistent message.

These and numerous other incidents from recent years show that colleges and universities continue to violate their students’ basic speech rights.  This is unacceptable given the Supreme Court’s consistent protection of college students’ freedom of expression, as discussed in the next section.

B. Supreme Court Jurisprudence on Students’ Expressive Rights at Public Universities

In case law spanning decades,[179] the Supreme Court has upheld the speech rights of students at public colleges and universities and made clear that these rights are entitled to the full protection of the First Amendment.  The Court’s jurisprudence on students’ expressive rights should inform administrators that the vast majority of student speech and expressive conduct may not constitutionally be censored or punished and that restrictions on student speech are only permissible in narrow, exceptional cases.  Therefore, these cases sufficiently convey the general constitutional principles governing student speech rights to clearly establish law for purposes of qualified immunity.[180]

The first of these decisions is Healy v. James,[181] which arose from a public college president’s decision to deny official recognition to a student group based on concerns over potential disruption and violence.  As a result of being denied official recognition, the group, a local chapter of Students for a Democratic Society (SDS), was deprived of the opportunity to place announcements regarding meetings and other activities in the student newspaper, barred from using campus bulletin boards, and denied the use of campus facilities to hold meetings.[182]

In invalidating the college’s decision, the Supreme Court acknowledged that a university has “a legitimate interest in preventing disruption on the campus,” but stated that “a ‘heavy burden’ rests on the college to demonstrate the appropriateness” of action taken to prevent actual disruption.[183]  The Court drew a crucial distinction between “mere advocacy” of disruption, which fell under protected expressive activity, and “advocacy ‘directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action,’” which was not entitled to constitutional protection.[184]  Regarding the former, the Court pronounced, “[t]he mere disagreement of the President with the group’s philosophy affords no reason to deny it recognition.  As repugnant as these views may have been . . . the mere expression of them would not justify the denial of First Amendment rights . . . . The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.”[185]

Healy’s impact extends well beyond the decision rendered in the case, as the Court’s majority opinion spoke unequivocally and powerfully about college students’ expressive rights. The Court emphasized at the outset that the outcome of the case merely required “the application of well-established First Amendment principles” and was “governed by existing precedent.”[186] Adding that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,”[187] the Court affirmed, “‘[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”[188]  Rather, it found that

the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large . . . .  The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.[189]

One year later, the Court handed down Papish v. Board of Curators of the University of Missouri,[190] in which it found that a university violated a student’s First Amendment rights by expelling her for distributing on campus a newspaper containing an “indecent” political cartoon and article.[191]  The Court held that neither the cartoon nor the article “can be labeled as constitutionally obscene or otherwise unprotected.”[192]  It also rejected the argument that the university’s decision was “an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination,” reasoning that the facts “show clearly that petitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.”[193]  As such, the Court ruled that the “University’s action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct” and invalidated the school’s decision to expel the student.[194]

Similarly to Healy, Papish speaks strongly about the importance of protecting students’ rights to speak freely on college and university campuses.  The Court pronounced, “[w]e think Healy makes it clear that the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”[195]  Additionally, having found that the university’s decision to punish the student had been based on the content of the newspaper, the Court stated that, “the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech.”[196]  With such unequivocal language, both Papish and Healy stand as landmark decisions in the Court’s First Amendment jurisprudence and have particular importance in providing the guiding principles for freedom of speech in public colleges and universities.[197]

In Widmar v. Vincent, the Court held that a public university’s act of denying a religious student organization the use of campus facilities for meetings violated the group’s right to free exercise of religion and freedom of speech and association.[198]  Having made campus facilities generally available to registered student organizations and thereby having created a public forum,[199] the university nevertheless sought to exclude the group on the basis of the religious content of its views.  Recognizing that the student group’s “desire to use a generally open forum to engage in religious worship and discussion” related to “forms of speech and association protected by the First Amendment,” the Court stated that the university could justify its actions only by demonstrating that the restriction was “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.”[200]  This it was unable to do.

In Widmar, the Court once again affirmed the sacrosanct status of college and university students’ speech rights, stating that “respondents’ First Amendment rights are entitled to special constitutional solicitude.”[201]  It added, “[w]ith respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”[202]  Furthermore, the Court indicated that student expression raises different issues in the college setting than in secondary education, positing that “[u]niversity students are, of course, young adults.  They are less impressionable than younger students . . . .”[203]  Widmar thus supports the idea that the speech rights of college and university students must be afforded robust protection and not be equated with the speech rights of high school students, and that university regulation of student speech must be limited accordingly.

More recently, a pair of Supreme Court decisions regarding student activity fees at colleges and universities reaffirmed the importance of upholding First Amendment rights on campus.  The first of these cases, Rosenberger v. Rector & Visitors of the University of Virginia,[204] was decided in 1995.  The case arose from a student organization’s challenge to the university’s denial of funding for the printing costs of its publication.[205]  The university based its decision on the fact that the publication was religious in nature or, in the university’s own words, “primarily promotes or manifests a particular belief in or about a deity or an ultimate reality.”[206] Finding that the university had created a limited public forum in which it funded a wide array of student groups and their expressive activities, the Court held that the university could only exclude speech where its distinction was “reasonable in light of the purpose served by the forum” and viewpoint-neutral.[207]  In this case, the university had denied the student group funding precisely because of its religious disposition, thus violating its free speech rights.[208]

In the Court’s other student fees decision, Board of Regents v. Southworth, a group of students at a public university challenged a mandatory student fee program which was used to fund a variety of student organizations, arguing that they should not be forced to fund expressive activity with which they disagreed.[209]  The Court upheld the program, again applying the standard of viewpoint neutrality.[210]  It recognized that, rather than facilitating its own speech, the university “exact[ed] the fee at issue for the sole purpose of facilitating the free and open exchange of ideas by, and among, its students.”[211]  Relying on its public forum analysis in previous case law as well as the Rosenberger decision, the Court concluded that “the principal standard of protection for objecting students . . . is the requirement that of viewpoint neutrality in the allocation of funding support.”[212]  Finding that the university’s program met the requirement of viewpoint neutrality in the instant matter, the Court denied the students’ challenge.[213]

Both the Rosenberger and Southworth decisions recognized the vital importance of students’ speech rights at public universities.  InRosenberger, the Court stated that for a university, “by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.”[214]  It added that the “danger . . . to speech from the chilling of individual thought and expression” which results from the government’s viewpoint discrimination is “especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.”[215]  Students’ expressive rights are important because “[t]he quality and creative power of student intellectual life . . . remains a vital measure of a school’s influence and attainment,”[216] and thus its ability to serve as a true marketplace of ideas. Similarly, in Southworth, the Court recognized that a university “may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall.”[217]  If so, it is entitled to operate a viewpoint-neutral mandatory fee program “to sustain an open dialogue to these ends.”[218]

Finally, the Court’s 1999 decision in Davis v. Monroe County Board of Education, though not a First Amendment case arising in the university setting, is significant because of the protection the Court afforded therein to student speech rights.[219]  Davis involved a fifth-grade student’s suit against her school district under Title IX,[220] claiming that it unlawfully subjected her to gender-based discrimination by failing to prevent sexual harassment by a classmate.  In holding that monetary damages are available under Title IX against an institution for its “deliberate indifference” to known acts of student-on-student (or peer) sexual harassment,[221] the Court established a high standard for actionable peer harassment.  It held that for conduct to rise to the level of actionable peer harassment, it must be “so severe, pervasive, and objectively offensive, and . . . so undermine[ ] and detract[ ] from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”[222]

The Court explicitly recognized in Davis that its standard created a high threshold for peer harassment.  Paralleling the facts of the case before it, which involved a prolonged pattern of extreme conduct,[223] the Court emphasized that peer harassment, in order to be actionable under Title IX, must involve truly harassing conduct rather than pure speech.[224]  The Court stated that “[d]amages are not available for simple acts of teasing and name-calling . . . even where these comments target differences in gender.”[225]  Davis counsels that peer harassment law, properly understood, should not be interpreted and applied to restrict protected speech, except where it is part of a larger pattern of harassing conduct.[226]  Therefore, Davis represents a significant step forward for student speech rights at all levels of education and certainly at the college and university level, where the misapplication of harassment law, both in policy and in practice, has long been one of major factors in the deprivation of students’ expressive rights.

C. University Officials Should be Denied Qualified Immunity for Most Applied Violations

In the cases discussed in the previous section,[227] the Supreme Court strongly defended the free speech rights of students at public colleges and universities.  The federal circuit courts, in case law spanning decades, have largely followed the Court’s jurisprudence.  The First,[228] Second,[229] Fourth,[230] Fifth,[231] Sixth,[232] Seventh,[233] and Eighth[234] Circuits have all, for example, upheld students’ speech rights in cases arising from applied violations.  While the respective decisions of the circuit courts represent a mere sampling of the case law on university students’ expressive rights, they lend additional weight to the lessons of the Supreme Court cases.[235]  That is, they should make it even clearer to university officials that they must take great care to avoid violating students’ speech rights.

The decisions of the Supreme Court and the federal circuits are sufficient to defeat qualified immunity in the vast majority of cases challenging applied violations.  University officials should, as part of their basic training and education, be expected to be familiar with the holdings of Supreme Court cases pertaining to their work responsibilities and functions.  They also should be aware of federal circuit court decisions following those important precedents, whether taking place within their own circuit or a sister circuit.  Even where their circuit has not clearly established the unlawfulness of a particular First Amendment deprivation, the decisions of the sister circuits, taken in conjunction with the Supreme Court’s holdings, will typically be sufficient to create “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”[236]

While the case law is not exhaustive and has not addressed every potential applied violation as a specific proposition, it provides administrators with the general constitutional rules governing university students’ expressive rights to defeat qualified immunity.  As the Supreme Court has made clear, the doctrine of qualified immunity does not turn on whether “the very action in question has previously been held unlawful,” but rather requires that “in the light of pre-existing law the unlawfulness must be apparent.”[237]  In the Court’s words, “general statements of the law are not inherently incapable of giving fair and clear warning,” and in many instances “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the ‘the very action in question has [not] previously been held unlawful.’”[238]

Under these principles, the Supreme Court’s strong defense of students’ expressive rights at public colleges and universities in case law spanning decades, put together with the holdings of circuit courts in cases challenging applied violations, provides university officials with sufficient notice for purposes of qualified immunity.  The case law should convey to administrators that the vast majority of student speech and expressive conduct is entitled to constitutional protection, and that restrictions on student speech are only permissible in narrow, exceptional cases.

Moreover, as previously discussed,[239] these principles have been affirmed by both Congress and the Office for Civil Rights (OCR), making them even clearer and, consequently, more difficult to ignore.  In two separate “sense of Congress” resolutions within the past twelve years, Congress has expressed that our nation’s institutions of higher education are places where the free exchange of ideas is to be promoted.[240]  Likewise, OCR has responded to the abuse of overbroad harassment rationales in speech codes by making clear that colleges and universities seeking to comply with federal harassment regulations should not infringe upon protected student speech.[241]  In other words, the legislative and executive branches of our federal government have joined the judiciary in calling for colleges and universities to uphold students’ expressive rights.

These declarations lend additional weight to the Supreme Court’s jurisprudence and the federal circuit court decisions, making universities’ infringements upon students’ free speech rights all the more unreasonable and, ultimately, indefensible.  Given the different sources of authority on this matter, courts adjudicating student suits challenging applied violations should deny qualified immunity to administrators in all but the most exceptional cases.

D. Case Law on Qualified Immunity and Applied Violations

This final section discusses some cases in which courts have denied qualified immunity to university officials for applied violations of students’ speech rights.  These cases illustrate courts’ agreement that when administrators at public colleges and universities violate clearly established law regarding students’ First Amendment rights, they should not receive immunity from suit in their personal capacity.  Though the case law has not dealt extensively with the issue of qualified immunity for applied violations, the few available decisions are instructive.

One such case is the Second Circuit’s 2007 decision in Husain v. Springer.[242]  In Husain, the editors of a student newspaper at a public university brought a Section 1983 challenge—seeking both injunctive relief and monetary damages—against the university president’s decision to nullify a student government election because of the newspaper’s endorsement of certain candidates.  At the onset of its analysis, the Second Circuit noted,

[c]ourts have long recognized that student media outlets at public universities, and the student journalists who produce those outlets, are entitled to strong First Amendment protection.  These rights stem from courts’ recognition that . . . student media outlets generally operate as ‘limited public fora,’ within which schools may not disfavor speech on the basis of viewpoint.[243]

The Second Circuit agree[d]

that, at a minimum, when a public university establishes a student media outlet and requires no initial restrictions on content, it may not censor, retaliate, or otherwise chill that outlet’s speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet.[244]

The court found that in this case the university had by policy created a limited public forum in which, subject to the existence of a compelling state interest, it could only place restrictions based on the identity of speakers who participated.[245]  By nullifying the student government election, the university president had run afoul of this limitation because “[w]hen a state university official takes retaliatory action against a newspaper for publishing certain content in an effort to force the newspaper to refrain from publishing that or similar content in the future, the official’s action creates a chilling effect which gives rise to a First Amendment injury.”[246]  Therefore, the court held that the student editors’ First Amendment rights had been violated.[247]

The Second Circuit then turned to the qualified immunity issue.  In overturning the district court’s grant of summary judgment to the university president on qualified immunity grounds, the Second Circuit first determined that, at the time of the president’s decision to nullify the student government election, it was clear that such action violated the student journalists’ First Amendment rights.[248]  The court held that a reasonable official in the president’s position would have been aware that the newspaper constituted a public forum “limited only with respect to the speakers who could participate and not with regard to the subject matters on which the newspaper could discuss” and that, accordingly, the First Amendment prohibited viewpoint discrimination within such a forum.[249]

Critically, in formulating its analysis, the Second Circuit determined that even though no court had specifically held that the nullification of a student election on the basis of a student newspaper’s expressed views violated the First Amendment by chilling speech, the unlawfulness of the university president’s actions in this case was “apparent in the light of pre-existing law,” with the “contours of the right . . . sufficiently clear that a reasonable official would understand that what he is doing violates that right.”[250]  The Second Circuit recognized—as the author has argued in this Article—that in the absence of on-point legal precedent, general principles from case law can establish the law for purposes of qualified immunity.[251]  The importance of such a holding is readily apparent, and student plaintiffs in many future First Amendment suits will have a better chance of piercing qualified immunity if they are able to convince the court to apply the same reasoning.

A federal district court in the Second Circuit followed Husain’s rejection of qualified immunity in a similar case decided in 2008.  In Sigal v. Moses, three students at a public college brought a Section 1983 action against the college president for overturning a student government election, in which the three students had been elected to office, due to the fact that a student newspaper initiated by one of the student candidates ran a special election edition allegedly promoting the candidacy of the plaintiff students and others in their party in an unfair manner.[252]  The court began its analysis by observing that the previous year, “the Second Circuit decided a case almost identical on its facts with the present one.”[253]  Following the Husain decision, the district court found a violation of plaintiffs’ First Amendment rights.[254]  It held that the newspaper had a right to advocate for the election of certain candidates, a right that “could not be restricted because of the fact that student activity fees were used to support the newspaper.”[255]  It rejected the college president’s argument that the newspaper’s election issue “became ‘the equivalent of a piece of campaign literature,’” opining that the contents of the issue “did not rob the paper of its character as a newspaper” entitled to First Amendment protection.[256]

Turning to the college president’s qualified immunity defense, the Sigal court took note of the Second Circuit’s determination in Husainthat the law was clearly established regarding the First Amendment violation in that case “despite the fact that no case had at that time been decided dealing literally with the nullification of a student government election based upon the content of a student newspaper.”[257]  It observed that the Second Circuit “held that the clear meaning of other decided cases was sufficient to cover what was done by the college president in this case.”[258]

In its qualified immunity analysis, the Sigal court held itself “bound by the holding in Husain to the effect that the law was plainly apparent at the time of the events in question.”[259]  It then turned to the question of whether it was nevertheless objectively reasonable for the college president to believe that her actions were lawful.  Significantly, even though the court determined that the college president had acted in good faith and believed that her actions were necessary to ensure a valid and fair election process and were in the best interests of the institution, it stated that the issue of qualified immunity “must be directed more closely to the specific constitutional rights involved—that is rights under the First Amendment—and these rights cannot be interfered with unless such interference is justified by a compelling government interest.”[260]  The court held that it was not objectively reasonable for the president to believe that nullifying the election was a lawful implementation of the college’s content-neutral election rules, because the record demonstrated that she did not give sufficient consideration to the First Amendment principles at stake.[261]  The court therefore denied qualified immunity to the president and awarded compensatory damages to the students.[262]

Schiff v. Williams represents another federal circuit court’s decision on the issue of qualified immunity. [263]  In Schiff, three student editors of a university newspaper brought a Section 1983 challenge to the university president’s decision to dismiss them from their positions and publish the newspaper using administrative personnel, seeking back pay, compensatory damages, and attorneys’ fees.[264]  The university president argued that his decision was based on the newspaper’s substandard “editorial responsibility and competence,” which “reflect[ed] discredit and embarrassment upon the university.”[265]

In Schiff, the Fifth Circuit held that the president’s rationale was insufficient because “the right of free speech embodied in the publication of a college student newspaper cannot be controlled except under special circumstances.”[266]  The university had to demonstrate that its actions were “necessarily related to the maintenance of order and discipline within the educational process.”[267]  In this case, the problems identified by the school—the newspaper’s “poor grammar, spelling and language expression,” which “could embarrass, and perhaps bring some element of disrepute to the school”—were “clearly not the sort which could lead to significant disruption on the university campus or within its educational processes.”[268]  Therefore, the Fifth Circuit held that the students’ First Amendment rights had been violated.

On the qualified immunity issue, the Fifth Circuit stated that the university president “‘must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic unquestioned constitutional rights of his charges.’”[269]  In this case, the court affirmed the district court’s ruling that the university president was not entitled to qualified immunity, despite the lower court’s finding that his action “was not motivated by malice . . . perhaps he thought he had a right to do what he did; he probably did think so.”[270]  As the Fifth Circuit stated, the university president “cannot avoid responsibility for his abridgement of First Amendment rights because his motives were to serve the best interest of the school.”[271]  The Schiff decision is important because it underscores that qualified immunity requires an objective analysis and does not hinge upon the subjective intentions of a state official.  As the Fifth Circuit emphasized, “[i]t is the existence of a reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity.”[272]

More recently, a federal district court denied qualified immunity at the motion to dismiss stage in a Section 1983 lawsuit arising from a student protest case at Valdosta State University in Georgia, discussed in the first part of this section.[273]  The student, Hayden Barnes, was expelled from Valdosta State in 2007 for peacefully protesting the university’s plan to construct new parking garages on campus, via an online collage.[274]  Despite the fact that the collage consisted entirely of protected expression satirizing the university president and criticizing the university’s decision to construct the garages, Barnes was labeled a “clear and present danger” by the university.[275]  Following his expulsion, Barnes sued the university, the president, and various administrators under a number of causes of action, including a Section 1983 action against the individual defendants in their personal capacities for retaliating against him for the lawful exercise of his First Amendment rights.[276]

In ruling on the individual defendants’ qualified immunity defense, the federal district court first determined that the First Amendment protected Barnes’ expression.[277]  The court rejected the defendants’ argument that the collage constituted fighting words and found “no indication that the language had the potential to cause any sort of substantial disruption on the VSU campus or in the classroom.”[278]

Next, turning to the element of clearly established law, the court considered whether a reasonable public university administrator would know that “expelling a student from school for advocating against planned construction” would violate the student’s right to free speech.[279]  Just like other courts, it affirmed the principle that “general statements of the law are not inherently incapable of giving fair and clear warning, and . . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.”[280]  Applying this principle to the case at hand, the court cited to circuit precedent holding as “‘settled law’ that the government may not retaliate against citizens for the exercise of First Amendment rights.”[281]  The court held that, based on such precedent, the individual defendants were “on notice and had fair warning” that retaliating against Barnes for speaking out against the proposed construction projects would violate his freedom of speech.[282]  Therefore, it rejected qualified immunity on this claim and allowed Barnes’ action for damages to move forward.[283]

A federal district court pierced qualified immunity in the 2007 case of Commissioned II Love, Savannah State University Chapter v. Yarbrough.[284]  Yarbrough arose from the suspension and ultimate expulsion of a faith-based student organization from a public university’s campus due to the religious practices of its members, which prompted the organization and two of its student officers to bring a Section 1983 suit seeking an injunction to prevent the university from denying the group student organization status, as well as nominal damages.[285]

At the motion to dismiss stage, the district court rejected the university officials’ argument that the student group’s “expulsion from campus only restricts them from assembling on campus as a student organization,” and that they had “not shown that they would be prevented from assembling on campus as an outside organization.”[286]  It stated that “denial of official recognition of a student group can establish a claim for restriction of associational rights,” and that “the Supreme Court has stated that a student group’s ability to exist outside the campus community does not significantly ameliorate the harm caused by the denial of official campus recognition.”[287]  The court therefore denied the university officials’ motion to dismiss the students’ freedom of association claim.[288]  With regard to the issue of qualified immunity, the court determined that the students had sufficiently alleged both that the officials “violated a constitutional right and that the right was clearly established at the time of violation.”[289] Accordingly, at this early stage of litigation, the court denied the officials’ qualified immunity defense.[290]

The preceding case law demonstrates that courts have pierced qualified immunity under various circumstances in which students at public universities have challenged applied violations of their First Amendment rights.[291]  Courts should, following these cases as well as the First Amendment principles discussed in this Article, pierce qualified immunity in the vast majority of cases challenging such violations.  Only in rare circumstances should a court find that the law is not clearly established in this area.

Conclusion

This Article asserts that because the law governing students’ speech rights at public colleges and universities is clearly established, university officials should not be granted qualified immunity, except in rare cases, for applied violations of students’ free speech rights. The Article also posits that because speech codes at public institutions have been clearly shown to be unconstitutional, administrators are not entitled to qualified immunity for drafting and maintaining speech codes.

Denial of qualified immunity in either type of case should not come as a surprise to a university official who has followed the development of the law, particularly over the past two decades. University administrators, whose work duties and very reason for existence on campus require a proper understanding of student rights, must afford students’ free speech rights the level of respect and protection to which they are entitled.  This should logically follow from administrators’ basic training and experience, as well as from the case law and policy updates they typically receive from such organizations as the National Association of College and University Attorneys (NACUA),[292]the Association for Student Conduct Administration (ASCA),[293] and others.  The combination of prior and ongoing education should be sufficient to keep administrators well-informed on issues that are central to their job functions and responsibilities. It is patently unreasonable for university officials in positions of authority to plead ignorance when, first, their official duties require given knowledge and understanding of the law[294] and, second, they have reasonable access to the relevant information.[295]

Nevertheless, public colleges and universities continue to ignore and violate their students’ First Amendment right to free speech, making student responses, including litigation, necessary. Crucially, Section 1983 provides a vehicle for individuals to vindicate federal constitutional and statutory rights such as the right to freedom of speech, and an important aspect of Section 1983 litigation is the ability to hold government officials liable in their personal capacity for monetary damages.  Suits brought against officials in their personal capacity serve the public interest in “hold[ing] public officials accountable when they exercise power irresponsibly”[296] and in “deterrence of unlawful conduct and . . . compensation of victims.”[297]  In this way, individuals are able to use the courts as a check on the abuse of authority by government officials and thereby advance compliance with the law.

As discussed, speech codes have persisted and indeed proliferated at colleges and universities despite two decades of cases uniformly invalidating them.[298]  The most telling statistic, taken from FIRE’s 2009 speech code report,[299] is that 71 percent of institutions surveyed maintained “at least one policy that both clearly and substantially restricts freedom of speech,” with the percentage remaining the same among public colleges and universities surveyed.[300]  Thus, administrators either lack an understanding of the lessons to be drawn from the case law or are acting in defiance of the law, or perhaps in some cases both.  Whatever the case may be, they are simply not “getting it.”

Students should therefore utilize personal capacity suits under Section 1983 in order to vindicate their speech rights by holding university administrators individually accountable for drafting and maintaining speech codes.  This requires courts to pierce qualified immunity.  Once courts begin to award damages to students who have been harmed by the existence of speech codes, administrators will suddenly face a different set of incentives.  Faced with the real prospect of paying monetary damages out of their own pockets, administrators will be forced to reconsider their institution’s stated policies toward student speech.  They will have to address the constitutional infirmities presented by these policies.  On many if not most campuses, this will likely result in eradication of speech codes and rewriting of speech regulations to comport with the guarantees of the First Amendment, creating a major victory for students’ free speech rights.

Likewise, piercing qualified immunity in cases of applied violations will change the calculus for administrators and force them to confront the First Amendment problems in their practices.  Despite decades of case law from the Supreme Court and federal circuit courts affirming the sanctity of freedom of speech at public colleges and universities, [301] these institutions continue to violate their students’ speech rights.  The examples provided of applied violations from recent years[302] demonstrate that such violations take many different forms and revolve around varying fact patterns, but that the end result is the same: student expression is censored or punished despite its clear entitlement to constitutional protection and, often, its tame and innocuous nature.  Again, far too many administrators are not “getting” the message from the case law, either because they fail to understand the rights belonging to students on public campuses or because they willfully ignore those rights, or in some cases both.

Therefore, students should pursue personal capacity suits under Section 1983 for applied violations of their free speech rights.  If courts pierce qualified immunity in such cases, they will provide students with the ability to use Section 1983 as a check against the abuse of authority by public university officials.  As the author has shown, courts have already rejected qualified immunity in a number of cases arising from applied violations.[303]  If more courts do the same in future cases, the result on many campuses will likely be that administrators, facing a powerful disincentive with respect to violations of student speech rights, will more closely examine the impact of their actions on those rights.  Knowing that they will face personal liability for monetary damages if their actions are found to violate clearly established law, officials at public colleges and universities will be less likely to restrict the exercise of speech and expressive activity protected by the First Amendment.  This too will represent a major victory for students’ free speech rights at public colleges and universities.

Ultimately, litigation under Section 1983 is one of many weapons to be used in the fight against campus censorship and punishment of student speech.[304]  Freedom of speech is one of the most sacrosanct rights possessed by Americans and certainly at public colleges and universities, where the freedom of students to interact, debate, and exchange views is crucial to the university’s ability to fulfill its mission as a true “marketplace of ideas.”  This Article posits that Section 1983 litigation against public university officials in their personal capacity is a crucial vehicle for vindicating students’ speech rights and that, in order to allow these suits to proceed, courts should pierce qualified immunity.  By doing so, the judiciary can act as a check against university administrators’ abuse of authority.  It is the author’s hope that this will have the long-term effect of upholding and protecting students’ speech rights on public university campuses, a result that would greatly benefit students, their institutions, and ultimately society as a whole.

        [1]  See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000); Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819 (1995); Widmar v. Vincent, 454 U.S. 263 (1981); Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667 (1973); Healy v. James, 408 U.S. 169 (1972).