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Lincoln
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source: Law.com
09-10-2003
A federal judge has enjoined Shippensburg University from enforcing key provisions of a speech code that bars all "acts of intolerance" -- including racist, sexist and homophobic speech -- after finding that the Pennsylvania university failed to show that the code was needed to protect students' rights or to avoid disruption of the educational process.
In his 32-page opinion in Bair v. Shippensburg University, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania found that while the speech code was "obviously well-intentioned," it simply went too far in attempting to regulate the speech of adult students.
The ruling is a victory for attorneys David A. French of Greenebaum Doll & McDonald in Lexington, Ky., and William Adair Bonner of Media, Pa., who urged the court to "restore the marketplace of ideas and remind the university that it is a laboratory of democracy -- not an incubator of indoctrination."
In an order handed down yesterday, Jones issued a preliminary injunction that bars the university from enforcing four sections of its speech code:
"Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age and/or political characteristics."
"The expression of ones' beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another."
"No person shall participate in acts of intolerance that demonstrate malicious intentions toward others."
"Racism shall be defined as the subordination of any person or group based upon race, color, creed or national origin. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidating and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age. Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors."
Jones found that "the university speech code, even narrowly construed, prohibits a considerable amount of speech ... [that] is neither vulgar nor obscene."
Lawyers for the university argued that the speech code was "merely aspirational" and therefore was not subject to First Amendment scrutiny.
Jones disagreed, saying "this argument fails because it is obvious that violations of the express provisions of the code subject Shippensburg students to the disciplinary process set forth therein."
Jones found that the speech code was "part of an attempt to achieve a utopian community within Shippensburg" in which "students are directed to respect the rights of other students in a world where reasoned, rational debate is the norm."
The university's lawyers, Jones noted, argued that the code "will foster free speech, rather than discourage it."
But Jones said "this sword has two edges."
During the tenure of the university's current president, Jones said, the speech code "has not been used, and likely will not ever be used, to punish students for exercising their First Amendment rights."
But in a lawsuit that presents a facial challenge to the code, Jones said, "our inquiry must assume not the best of intentions, but the worst."
"While we recognize that citing students under the suspect provisions has not been a common practice, in the hands of another administration these provisions could certainly be used to truncate debate and free expression by students," Jones wrote.
Jones found that the speech code was not saved by the fact that some of the forms of discrimination it prohibits are also prohibited by federal law, such as race and sex discrimination.
"While the university's objective of preventing forms of discrimination against these protected classes of individuals is certainly laudable, this ambition still runs afoul of First Amendment concerns if discrimination policies have the effect of prohibiting protected forms of expression," Jones wrote.
"Simply utilizing buzzwords applicable to anti-discrimination legislation does not cure this deficiency."
Jones found that the university went too far when it directed students to communicate their beliefs "in a manner that does not provoke, harass, intimidate or harm another."
"The concept of prohibiting communications which 'provoke' suggests that a student's beliefs should not be communicated in a way that arouses interest and stimulates a response. Aside from the constitutional concerns of the policy, it is worth noting that such a view is inconsistent with our nation's tradition of safeguarding free and unfettered interplay of competing views in the academic arena," Jones wrote.
"Communications which provoke a response, especially in the university setting, have historically been deemed an objective to be sought after rather than a detriment to be avoided. Moreover, the terms 'provoke' and 'intimidate' focus upon listeners' reactions to speech," Jones wrote.
The government, Jones found, "may not prohibit speech ... based solely on the impact that its offensive content may have on a listener."
Even offensive speech is protected by the First Amendment, Jones found.
"As the Supreme Court has emphatically declared, 'If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,'" Jones wrote, quoting from the U.S. Supreme Court's 1989 decision in Texas v. Johnson.
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The speech codes sound real nice on the surface but they can be interpreted just about any way an administration chooses. The last paragraph in the above article says it all.
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gunkulator
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Lincoln, shouldn't you be arguing the other side? Do you support, for example, Bob Jones University prohibiting "anti-Christian" speech as part of their 4th Ammendment rights?
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Lincoln
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There is a difference between private universities and those that are supported by the public.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:30
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But you see nothing wrong - regardless of the Constitution - with Bob Jones University telling students what they can and cannot say?
I find that repugnant, personally.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:30
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Just because the Constitution allows something doesn't make doing it a good idea.
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Lincoln
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quote:
Originally posted by David Floyd
But you see nothing wrong - regardless of the Constitution - with Bob Jones University telling students what they can and cannot say?
I find that repugnant, personally. |
I see nothing wrong with a voluntary association of people restricting speech or activities as they choose. No one is going to come into my house for example and begin to cuss like a sailor in front of children. That right to privacy extends to private associations such as Bob Jones. And no, I don't find it repugnant that a religious school restricts speech.
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gunkulator
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So Lincoln, your only litmus test for private vs. public is gov't funding? What about school vouchers for private schools or the Boy Scouts excluding gays?
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Tingkai
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To find the Northwest Passage
Aug 2001
time: 13:30
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quote:
Originally posted by Lincoln
I see nothing wrong with a voluntary association of people restricting speech or activities as they choose. No one is going to come into my house for example and begin to cuss like a sailor in front of children. That right to privacy extends to private associations such as Bob Jones. And no, I don't find it repugnant that a religious school restricts speech. |
Using this logic, no one is forced to go to Shippensburg University so it should be allowed to set its own rules.
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Tingkai
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To find the Northwest Passage
Aug 2001
time: 13:30
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The judge is wrong. His ruling is based on a misinterpretation of a basic English word. He apparently believes that "should" means "must".
The code states: "The expression of ones' beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another."
In other words, here's a nice suggestion about how you should behave.
The judge thinks this section of the code prohibits such expression. It does not.
The problem with this university's code is not that it limits free speech, but rather it is pretty pointless. The code basically says:
1) Acts of intolerance will not be condoned (Does anyone think these acts would be condoned?)
2) People should try to talk nicely to each other (ho hum, boring)
3) Racism with malicious intent is not prohibited. (What a shocker. Guess that means the end of the annual lynch mob)
4) Subordination, intimidation and/or harassment with malicious intent is prohibited. (No kidding. I guess this might be why there are laws against intimidation and harassment with malicious intent).
The only problem with this code is what the hell do they mean by subordination.
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10-09-2003 18:51
And, strangely, reminds me of the University of Michigan's new admission policy that requires that students write an essay about the effects and impact of "diversity" in their lives, as opposed to the old policy of rewarding points for underrep. minorities. 
. It isn't just this is how you should do things, it is also that you should do things this way or else we will assign penalties.
This is just as dumb as saying:
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