In Wake of ‘DeJohn’ Ruling, FIRE Issues Warning to ‘Red-Light’ Public Schools in DE, PA, NJ

As Torch readers will no doubt remember, last month's ruling in DeJohn v. Temple University from the United States Court of Appeals for the Third Circuit made clear yet again that unconstitutional speech codes have no place at our nation's public colleges and universities. As I wrote the day after the ruling in an article for JURIST:

Temple's former sexual harassment policy has become the latest in a long line of speech codes to fail in court. Hopefully, with the weight of the Third Circuit behind the ruling, public universities will finally get the message: Harassment policies must be carefully tailored so as to target only that speech which constitutes "true harassment" under binding Supreme Court precedent.

Unfortunately, here at FIRE, we know that just hoping that schools will "get the message" on their own is wishful thinking. In our experience, getting public colleges and universities to respect the rights of students and faculty often requires repeated warnings to let schools know that by maintaining unconstitutional speech codes, they are violating the First Amendment. Otherwise, college administrators are all too willing to proceed on their merry way, seemingly oblivious to the fact that on another public campus, a federal appellate court ruling has invalidated a speech code that mirrors their own in effect or language.

That's why this afternoon we sent out a letter to the leadership of the twenty public colleges and universities in the Third Circuit (comprised by Pennsylvania, Delaware and New Jersey) that receive a "red-light" rating in our Spotlight database. All twenty schools maintain at least one policy that unconstitutionally restricts speech on campus. Our letters apprise them of the impact of DeJohn on their policies. As I write in the letter:

DeJohn makes clear—again—that public universities cannot abridge the First Amendment on campus, whether via harassment policies (like the one at issue in DeJohn), civility policies, free speech zones, or other unconstitutional speech codes. Indeed, the Third Circuit's ruling should come as no surprise to public universities. That the First Amendment's protections fully extend to the public university campus is settled law, and federal and state courts across the country have struck down unconstitutional speech codes masquerading as harassment or civility policies at public universities over the past twenty years.

After informing the recipients that their schools enforce policies likely in violation of the Third Circuit's ruling in DeJohn that "[d]iscussion by adult students in a college classroom should not be restricted," the letter outlines the potential consequences of continuing to ignore clear legal precedent:

While FIRE does not engage in litigation, we believe you should be aware that any public university policy prohibiting constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators can be sued in their individual capacities. When the law is so clearly established with regard to unconstitutional speech codes, claims of immunity from liability on the part of individual administrators will likely fail. State officials and employees are offered only qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Davis v. Scherer, 468 U.S. 183 (1984). This means that administrators may be held personally liable for continuing to maintain unconstitutional speech codes in violation of students' First Amendment rights.

Our theory is that perhaps when administrators understand that they defy the law at their own risk, they will finally take rulings like DeJohn seriously. After all, every one of the schools we wrote to today is in the Third Circuit, meaning that DeJohn is directly applicable and serves as binding precedent.

Some of the policies enforced at the schools we wrote to today make Temple's former speech code—the policy at issue in DeJohn, which outlawed "generalized sexist remarks and behavior," among other things—look positively enlightened. For example, Delaware State University outlaws the "use of harsh, often insulting language to any member of the University community." That such a restriction is both impermissibly vague (what exactly is "insulting language"?) and overbroad (nearly all "insulting language" is protected by the First Amendment, anyway) is instantly apparent. Or take Penn State, which maintains a sexual harassment policy that defines sexual harassment in part as "verbal or physical conduct of a sexual nature" that "creates an offensive, hostile, or intimidating working or learning environment." As Penn State's general counsel should know, this definition fails to track the precise legal definition of hostile environment sexual harassment given by the Supreme Court in Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). Speech only loses First Amendment protection and becomes true hostile environment harassment when it is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Otherwise, as the Third Circuit made clear in DeJohn, sexual harassment policies, no matter how well-intentioned, "reach too much expression that is constitutionally protected" and thus are impermissible under the First Amendment.

Unfortunately, these are just two examples of the types of unconstitutional policies currently in place at each of the twenty schools that received our letter today. Presidents and administrators of these schools need to understand that as a legal matter, compliance with DeJohn and the First Amendment is not optional. That's why we look forward to seeing substantive policy reform at each of the schools we wrote to today. So be warned, California University of Pennsylvania, Cheyney University of Pennsylvania, Clarion University of Pennsylvania, Delaware State University, East Stroudsburg University of Pennsylvania, Edinboro University of Pennsylvania, Indiana University of Pennsylvania, Kutztown University of Pennsylvania, Lincoln University, Mansfield University of Pennsylvania, Millersville University of Pennsylvania, Montclair State University, New Jersey Institute of Technology, Pennsylvania State University– University Park, The Richard Stockton College of New Jersey, Rutgers University– New Brunswick, Slippery Rock University of Pennsylvania, The College of New Jersey, West Chester University of Pennsylvania, and William Paterson University. We're waiting, but our patience is limited.