Campus Free Speech: Litigation Update

Free Speech & Election Law Practice Group

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Free speech and open inquiry on campus have long been a fundamental part of higher education.  However, in recent years public universities have started to enact speech codes and other guidelines. These measures have resulted in several lawsuits filed against the public universities across the country with interesting results. Please join us for a discussion with representatives from the Alliance Defending Freedom, the Foundation for Individual Rights in Education, and SpeechFirst, who all have active litigation related to campus free speech moving through the federal judiciary. 

Featuring:

Mr. Michael Connolly, Partner, Consovoy McCarthy Park PLLC.

Mr. Will Creeley, Senior Vice President of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)

Mr. Tyson Langhofer, Sr. Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Wednesday, February 27, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is "Campus Free Speech: A Litigation Update." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today we are very fortunate to have with us a very accomplished panel, and first on our panel is Mr. Michael Connolly, who is a Partner at Consovoy McCarthy Park PLLC. Also with us is Mr. Will Creeley, who is Senior Vice President of Legal and Public Advocacy at the Foundation for Individual Rights in Education, also known as FIRE. Third, but not last, Mr. Tyson Langhofer, who is Senior Counsel and Director of the Center for Academic Freedom at the Alliance Defending Freedom. After our speakers give their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for either the ideas, the cases that they're working on, or direct your question to one of our speakers individually. So thank you all very much for sharing with us today. Will, I believe the floor is yours to begin.

 

Will Creeley:  Mr. Hodges, thank you so much, and thanks to everybody listening, either today or in a future recording. As the introduction made clear, my name is Will Creeley. I am the Senior Vice President of Legal and Public Advocacy here at the Foundation for Individual Rights in Education, or FIRE as we're known for short. A brief overview of our work: since 1999, we have been a non-partisan, non-profit organization dedicated to defending student and faculty rights. Till 2014, our work mainly focused on getting colleges and universities to respect student and faculty rights by moral suasion, public pressure, coordinated campaigns of that nature. In 2014, we added litigation to our toolbox, launching our Stand Up for Speech Litigation Project.

 

Since 2014, we have changed our litigation practices in some ways. Initially, we coordinated suits, and those suits were litigated by the good attorneys at Davis Wright Tremaine, led by attorney Robert Corn-Revere. Since then, we've also begun litigating cases with FIRE attorneys as lead counsel in cooperation with members of our volunteer legal network. We've also recently pursued other types of litigation-related efforts, including open records lawsuits. We often find that schools are not excited about sharing the decision making processes that lead to censorship on campus and are all too willing to stonewall efforts to disclose such information under applicable state statutes. And we've found that to be, unfortunately, an area with many targets for litigation, so we will continue to pursue that.

 

Since launching our project in 2014, we've sponsored or filed 15 lawsuits on behalf of students, student organizations, and faculty members. We've reached 14 successful settlements, securing over $2.1 million in fees and damage awards. Settlements have also reformed or eliminated speech codes impacting roughly 570,000 students on campuses nationwide. We've been pleased with the attention garnered by our litigation efforts. Our work has been featured by Wall Street Journal, New York Times, USA Today, and dozens of other outlets. We've also been pleased to have the U.S. Department of Justice take an interest in our work, recently filing a statement of interest in a case that was just concluded in January, our lawsuit against the Los Angeles Community College District and Pierce College.

 

I want to take just a few minutes to talk about some of our recent noteworthy victories, beginning with a case named Gerlich v. Leath. This is our lawsuit against Iowa State University and resulted in a pair of opinions from the United States Court of Appeals for the Eighth Circuit that, in a nutshell, without getting too deep in the weeds on this case, barred the university from enacting and enforcing a viewpoint discriminatory policy designed to repress the speech of the ISU chapter of the National Organization for the Reform of Marijuana Laws. The group sued ISU with our help in 2014 after the university rescinded approval for a t-shirt it had previously approved featuring the ISU mascot on a NORML t-shirt, NORML being the acronym for the group. Discovery showed that there had been significant blowback from state officials with regard to the idea that the university was somehow taking a position on the question of the reform of marijuana laws. And it's a very interesting opinion if folks are interested. That's 861 F.3d 697. The settlement that resulted following the Eighth Circuit's opinion resulted in a recovery of nearly $1 million dollars in damages and attorney's fees.

 

Also had a recent victory which I'm pleased to announce in our litigation against Chicago State University where we coordinated a suit on behalf of two professors who operated a faculty-run blog that was critical of the university and perceived corruption amongst university leadership. The university had hit back at the professors repeatedly and passed a cyber bullying policy that was pretty wildly overbroad; also, a computer use policy which barred "any communication tends to embarrass or humiliate." And any first-year law student who's taken Con Law would quickly recognize that as being the type of broad, vague prohibition on speech that won't pass muster when enacted by a public official or a public university like Chicago State. So we're pleased to have that one now settled. And that case took far too long to settle, but it's in the books at this point.

 

As I mentioned, FIRE is proudly non-partisan. We take cases from across the political spectrum. Our basic rule of thumb here: If it's protected speech, we'll defend it. We had an interesting case in April of 2018, on that note, with a student who was handing out anti-capitalism flyers. The flyers read, "Shut down capitalism." And she was reported by campus staff, detained, and interrogated by Joliet Junior College police. And she was actually live tweeting her detention, which is how we learned about the case. FIRE attorneys filed suit on her behalf, challenging the constitutionality of the Joliet Junior College free speech area, which restricted student speech to one small indoor space on campus. Happily, after the filing of the lawsuit, the university quickly settled, abandoning its free speech zone and enacting the report of the committee on freedom of expression at the University of Chicago, better known as the Chicago Statement, which is appropriate given Joliet Junior College's proximity to Chicago and also its status as an institution of higher education. We think, here at FIRE, that the Chicago Statement, as we call it, is the gold standard for policies making clear the primacy and essentiality of free speech on campus. That lawsuit also involved a $30,000 settlement.

 

Finally, we've got two cases currently pending, one on a petition for writ of certiorari in front of the Supreme Court. That case is Abbott v. Pastides involving a challenge on behalf of a libertarian student group to the harassment policy at issue there, and also the application of that policy to students who are the subject of other student's complaints after holding a university-approved free speech event on campus where, somewhat ironically, they talked about other free speech controversies on campus. They received a notice of charge, summoned to a mandatory meeting with the administration, and had to wait a month in total before being told they would not be charged with violating their policy against discrimination harassment. We have a lousy ruling from the Fourth Circuit there. We're hoping that the Court grants cert to correct that mistake.

 

Finally, we're also waiting on a ruling from the U.S. Court of Appeals for the Fifth Circuit in the case of Buchanan v. Alexander, which is a lawsuit on behalf of LSU Professor Terry Buchanan who is a veteran education professor at LSU fired for her alleged use of profanity and sexual language while teaching. The sexual harassment policy maintained by LSU is, in our opinion, constitutionally infirm. That case, as I say, is before the Fifth Circuit.

 

That is a brief summary of what we have in the books and what we have still pending. If folks are interested, you can check out our website, www.thefire.org, our recently redesigned and relaunched website. And you can always contact me. I'm will@thefire.org. I urge folks who are interested in learning more about our work to do so. And we're always happy to accept volunteer attorneys to our legal network which is available on the website. Thank you, and I'll be happy to pass it off to Tyson and Mike here.

 

Wesley Hodges:  Thank you so much, Will. Tyson, I believe it's your turn next.

 

Tyson Langhofer:  Thanks a lot Wes, and thanks Will. As Wes said, my name's Tyson Langhofer. I'm the Director of the Center for Academic Freedom at Alliance Defending Freedom. And at the Center for Academic Freedom, our goal is to protect the rights of students and faculty at public universities so that everyone can freely participate in the marketplace of ideas. Over the last 13 years, we have more than 400 victories throughout the country and about a 90 percent success rate overall, and 100 percent success rate in challenging speech zones. We have numerous ways that we accomplish our goals, sort of in line with FIRE. We have litigation, which I'll talk about here shortly, but we also engage in changing policies through writing letters and negotiating otherwise with college officials.

 

There's four, really, types of policies that we challenge on a regular basis, and I'll talk about each one of those and some pending cases that we currently have on those. So the first one is speech zones. A speech zone is simply a policy that universities enact to try to basically say that students, or any person on the campus, only have the right to engage in speech in small, little areas on campus. And many times, those are enforced not only to just limit speech to that area but also enforced in a viewpoint discriminatory manner. And we have a current lawsuit pending against Arkansas State University on behalf of a student, Ashlyn Hoggard, and her Turning Point USA group. Ashlyn was out trying to start a group. She went out in front of the student union on a large walkway with another student and set up a table, and just began promoting her group. She wasn't blocking any sidewalks or engaging in any disruptive behavior, but the school came out within minutes and told her that she had to stop because she was outside the speech zones, and she hadn't obtained permission.

 

And when we looked, we found that the policy at Arkansas State, they had designated seven small areas on campus which was less than one percent of campus was encompassed in those speech zones. But the policy also said that you had to have prior permission 72 hours in advance before speaking anywhere on the college campus. And so we challenged that policy. We're now done with discovery, and we just filed summary judgement on that, and that will be heard in April. The interesting thing about that case is that Arkansas just passed the FORUM Act, which we've worked with FIRE on, which is a legislation which is designed to -- a state law to protect and basically codify existing First Amendment jurisprudence and put it into state law. And so that's been enacted, so it'll be interesting to see how the school reacts to that pending legislation and how that affects the lawsuit.

 

That case is pending, but we had another lawsuit similar to this against Kellogg Community College where we challenged a speech zone where a student and two friends, non-students, were actually arrested and taken to jail for seven hours for handing out copies of the Constitution outside of the speech zones and were arrested for that. And we challenged that and were able to successfully change that policy.

 

The second type of policies that we challenge are speech codes. A speech code is a policy which essentially defines speech and punishes certain types of speech that a university might deem as uncivil, or as derogatory or demeaning. And those are unconstitutional because they're viewpoint discriminatory. They inherently require somebody to make a judgement on what's demeaning. We had a case, actually, against Iowa State a couple years ago where Iowa State had a policy which required all students to go through this online training. And the online training indicated that they had these speech codes in place, and the speech codes actually said that "we prohibit things such as any speech that some students might deem as not legitimate." And it also specifically said that First Amendment protected activities may by considered harassment under the policy. And a client, a student, was going through that, and they require you to basically say you agree to these policies. And he said, "Well, I can't agree to those policies." And so we filed a lawsuit and challenged that, and Iowa State changed that speech code.

 

The third type of policy that we challenge are student activity fees. Now, student activity fees are essentially fees in addition to tuition which pretty much every college and university across the country require students to pay. And these fees are designed to fund student organization speech. That's private speech. And so essentially, by requiring all students to pay this fee, they're forcing students to pay for private speech that they disagree with, and under the First Amendment, that's called compelled speech. Essentially, the -- and one of our attorneys challenged that type of policy back in 2000 in a case called Board of Regents of the University of Wisconsin System v. Southworth. And the Supreme Court said, "Well, we will allow universities to force students to pay these student activity fees, but you can only do that if the policy itself is viewpoint neutral." In other words, it must allocate the fees in a viewpoint neutral manner. It must not take the content of the viewpoint of the speech in to account when allocating those fees.

 

If you look at the majority of these policies across the country, almost none of them have a viewpoint neutral policy in place. They grant broad discretion. Let me give you an example. We have a current lawsuit pending against California State University San Marcos on behalf of Nathan Apodaca and the Students for Life group there at San Marcos. Students for Life group applied for a $500 grant to bring in a pro-life speaker to talk about abortion. And they were denied and said, "Our policy prohibits the use of these fees for outside speakers." Well, Nathan knew that many other groups bring in outside speakers, and he asked them, "Why can the Pride Center and the Gender Equity Center bring in these speakers?" And they said, "Well, they're different."

 

So when we did some research, we found out how different they are. About $2.1 million comes in through those activity fees, and $300,000 off the top is given to the Gender Equity Center and the Pride Center. The other 100 student groups got a total of $53,000 out of that $2.1 million to share. And they were capped at $500 apiece, and they couldn't use it for outside speakers. And that is not a viewpoint neutral policy, so we challenged that. We've litigated it for about two years. Summary judgement motions are pending in that, and we're waiting for hearings to be set there.

     

We also have a current lawsuit pending against the University of Florida on behalf of Young Americans for Freedom challenging their policy. The University of Florida has a policy that grants discretion to the student government to allocate a substantial amount of money, and the way that the policy is written, it essentially grants the student government the ability to give this money out in whatever way they want. And they've created a two-tiered system where they have budgeted and non-budgeted student groups. The budgeted groups -- there's about, I think, 10 of them, and they get over $1 million total. The other 800 student groups get about $50,000. And so again, not a viewpoint neutral policy, and very unfair, and so we're challenging that policy.

 

The final type of policies that we challenge are student recognition policies. In order to become a recognized student group, there are certain policies and procedures that these students have to follow. And you cannot obtain certain benefits unless you're a recognized group, such as free reserving of rooms or outdoor spaces and access to student activity fees. But many of these policies are discriminatory. For example, we represented the Young Americans for Liberty against UC Berkeley last year. The Young Americans for Liberty was denied recognition because the school said that they were too similar to another libertarian group. Well, in order to determine that they were too similar, they had to determine -- they had to look at their viewpoint, and they had to make that determination. And you can't, again, discriminate against a group based upon their viewpoint.

 

We currently have a lawsuit pending on behalf of Ratio Christi, a student group against the University of Colorado Colorado Springs. Ratio Christi was denied recognition because they required their leaders to adhere to the beliefs of the group. And the university has indicated that that is -- they denied them and said, "You cannot require your leaders to have the same beliefs as the group." And so we're challenging that policy because that is an infringement upon their First Amendment rights of speech and association.

 

So that gives you a good overview of the types of cases that we take and we have pending, and we can answer any questions and discuss this further after Michael talks.

 

Wesley Hodges:  Wonderful. Thank you so much, Tyson. Mike, you are next.

 

Michael Connolly:  Yes. My name is Michael Connolly. I'm a partner at Consovoy McCarthy Park here in Washington D.C. I represent an organization called SpeechFirst, and SpeechFirst is a membership organization made up of college students all over the country who are concerned with a lot of the problems that are happening with free speech at colleges and universities. You all have heard some of it talked about today, and I'm sure you're aware of it, but you've got free speech zones, and kicking speakers off campus, and speech codes, and all sorts of things. And so there has been sort of a growing movement among a lot of students on campus to start fighting back against these types of policies.

 

SpeechFirst, so far, has brought two lawsuits, one against the University of Michigan and one against the University of Texas. And both have challenged two similar types of policies. The first that Tyson talked a little bit about are speech codes. And the classic speech code is something that prohibits any sort of verbal harassment. And while that might sound good in theory, verbal harassment, the way colleges often define it, is incredibly broad. So it could include anything that makes someone feel uncomfortable or "unsafe." And when there is this sort of policy out there, a speech code, it's not surprising that students are chilled and don't speak because they're afraid to be punished.

 

The second type of policy that SpeechFirst has challenged, and I think it's unique to SpeechFirst, are what are called bias response teams. And these have really popped up in the past five, ten years all over the country. They were not the sort of thing you would see 15, 20 years ago. And essentially what a bias response team is is a university goes out and invites students and professors to report to the university whenever it sees anything it calls bias. And bias, usually, is incredibly broadly defined to often deal with anything involving race, sex, politics, religion -- it's incredibly broad. And what happens is these bias response teams will go out and then investigate the bias that happened, and they'll bring in the offender who said the bias, and sometimes there can be punishment. And it's sort of a system that's all over the country that is a way that universities try to proactively stop anyone from saying anything offensive and making anyone feel uncomfortable.

 

So those are the two general policies, and they popped up both in our Michigan lawsuit and the University of Texas lawsuit. So the Michigan lawsuit speech code prohibited harassment and bullying. And harassment was defined as "to annoy persistently or to create an unpleasant situation through unwelcome verbal conduct." Bullying meant "to treat abusively." And you can see here it's so broadly defined that it would start -- if you got in to a heated argument with someone about Israel, or religion, or abortion, or anything like that, someone could say, "You are harassing me," even though these are the classic types of speech that First Amendment is designed to protect.

     

We also challenged Michigan's bias response team. And the bias response team, like I just said, encouraged anyone to report if they saw conduct or speech that was based on someone's identity, race, color, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age, or religion. And again, any sort of -- what happens in Michigan and other places is whenever you hear, in the eye of the beholder, something that you interpret as bias, you can essentially get the university's bias response team to sweep in and start investigating it. So we sued. We filed a motion for preliminary injunction. Shortly thereafter, the university made a lot of changes to its website and to some definitions of the speech codes, and essentially the district court held that it was moot after that. We are now up at the Sixth Circuit challenging whether the case is essentially moot.

 

The second one is University of Texas -- very similar. University of Texas had a speech code that prohibited verbal harassment, which was defined, again, as offensive speech. That includes insults, ridicule based on ideology, political views, political affiliation. There was also an acceptable use policy that dealt with speech over the university's technology, that uses the university's technology, and that prohibited speech that was uncivil, rude, or harassing. And the other one was the resident hall manual that prohibits harassment dealing with sexism, cissexism, ageism, ableism, and any other force that seeks to suppress another individual or groups of individuals. So again, just wildly broad.

 

And the second thing we challenged in the University of Texas is their bias response team, which they call the campus climate response team. Like in Michigan, this campus climate response team encourages students to report "bias" whenever they see it. And again, it's the sort of thing where it acts to suppress and chill speech because you're afraid that you're going to say something on campus, or in class, or in a protest, and you'll be reported to university officials. Your natural sort of reaction is to not speak. So we challenged that just in the past couple of months. We recently filed a motion for a preliminary injunction. That's fully briefed, and there's a hearing on it later this week.

 

Those are our two cases so far. Unfortunately, there's so many problems on college campuses. I doubt this will be last lawsuit that SpeechFirst will be filing, but that gives you -- it's a young organization, but that gives you sort of an overview of what's happened on the litigation front so far.

 

Wesley Hodges:  Well, thank you so much, Mike, and thank you to all of our panelists. While we wait for audience questions, Will, since you were the first one to speak today, do you have anything that you'd like to follow up on from your remarks or touch on from Mike and Tyson?

 

Will Creeley:  Well, I'm very happy to have the opportunity to address a case I somehow forgot to mention that our lawsuit against the Los Angeles Community College District which just settled recently -- Tyson's remarks reminded me of a persistent fact pattern wherein a student is handing out a copy of the Constitution, which is precisely what our student at Pierce College, which is one of the nine colleges in the Los Angeles Community College District, was doing. He was handing out a Spanish language copy of the Constitution to his fellow students, or attempting to, before he was stopped.

 

And listeners might be surprised to know that that basic set of facts is surprisingly prevalent in the lawsuits that we've brought. It's always depressing to meet somebody and have them ask me what I do for a living. I'll tell them I do First Amendment law on college campuses, and they say, "Well, what kind of cases do you see?" And I say, "Well, you'd be probably surprised and depressed to know how many of them involve students just trying to hand out copies of the Constitution." And it's really pretty amazing. I think, let's see, all told, I think we've had either three or four of those. I'm losing count at this point.

 

Happily, I'm pleased to report we've had some progress. As Mike notes, there are still many problems on campuses across the country, but we have had some good progress with regard to cleaning up free speech zones. Those, by our indications—and every year, FIRE conducts a survey of policies maintained by roughly 450 universities and colleges, both public and private nationwide—and our latest counts, the number of institutions maintaining free speech zones has dropped significantly. So I'm pleased to report that litigation and other related strategies do seem to be having a positive impact. Now, that's only an accounting of the policies as they're written. Of course, schools can have terrific policies but still violate student and faculty rights in specific instances, so that's something we're always aware of as well.

 

Wesley Hodges:  Thank you, Will. And Tyson, I turn the mic back to you. Do you also see the, I guess, increasing victories across the scope, just like Will was saying?

 

Tyson Langhofer:  Yes, we do, absolutely. And I think FIRE's good work in pointing out policies and our work in litigating them -- those have both contributed, I think, to better policies in general. Unfortunately, and there are fewer pure speech zone policies, what we're seeing more now is universities getting a little bit more creative in how they do it. And that's sort of what Arkansas State did where they don't say you can only speak in the speech zones. They have speech zones, and they try to get everybody to speak in those, but they also say you can speak in other areas, but unfortunately, they still require prior permission before speaking in those areas. And so that's a real problem because the First Amendment has said -- or the Supreme Court in interpreting the First Amendment has said that requiring prior permission to speak in a public forum is a prior restraint. And those are one of the worst forms of restrictions on speech because, essentially, you've got to go to the government before speaking anywhere. It would be like a city imposing the requirement to get permission to speak on a public sidewalk before you do so, even for one or two persons.

 

And so yeah, we have seen improvement, and we're definitely thankful for that, and we're thankful that our win rate is really good in these. What's depressing is, as Will said, we're still having to file a lot of these. And we're still seeing so many blatant violations, such as stopping somebody from handing out a copy of the Constitution or having a policy like what SpeechFirst is challenging where it's this broad "you can't offend anybody" type of policy. And these are massive universities with all kinds of resources. It's not like they don't have the ability to access good law firms that can advise them on these things, and so they're not mistakes, unfortunately. They're willful violations in my mind, and there's still too many of them.

 

Wesley Hodges:  Well, thank you, Tyson. Mike, I turn the mic back to you. Do you have anything you'd like to further cover from your remarks, or want to touch on from Tyson or Will, or just the scope of free speech on campus?

 

Michael Connolly:  I guess the only other thing I would add is that what's often surprising is that frequently, it's not only just universities who are doing this, but sometimes you have students who are demanding that the university do something about speech that they don't like or speech that they deem offensive. And so it's sort of a weird thing that you see students demanding that they be regulated and they be punished for speech of their fellow classmates. And I think it's certainly unfortunate, but it's, again, sort of a phenomenon that is only recent that this has started happening.

 

Wesley Hodges:  Well, thank you, Mike. Looks like we do have one question in the queue. Let's go to our audience questions.

 

George Lenew (sp):  Hi, this is George Lenew. I thank you for this forum. It's useful to talk about these things. I've read and written about the SpeechFirst lawsuits at Michigan and Texas. What is amazing to me is these are places that have very large legal staffs, and how they could have approved such sweeping anti-First Amendment policies is amazing. My specific question is this: What positions have the national associations, the American Council on Education, the Association of State Universities and Colleges, the National Association of University and College Attorneys, what position have these national associations taken with regard to how their members are treating speech issues?

 

Michael Connolly:  This is Michael Connolly. I'm not aware. Tyson, are either of you aware?

 

Will Creeley: Yeah, I'm happy to weigh in here. This is Will Creeley from FIRE, and that's a great question. It's a mixed bag. Different university associations or governing bodies have taken slightly different positions, and they've evolved as the state of the law has moved and as we've now seen with state legislation prompting further reform of speech policies. So I think it's hard to paint with a broad brush. I will say as someone who is in touch with those bodies, and their representatives, and their members fairly regularly, there is a growing awareness -- the mounting pressure on universities to comply with the First Amendment. It used to be a little bit like being the skunk at the party to show up at one of these conferences and to make First Amendment arguments that seemed obvious to us here are FIRE, but we're often either disregarded or mocked from different audiences.

 

And now the reception is slightly different. I think we've happily managed to convince a good number of general counsels of some of the basics, as evidenced by our settlement rate and the success of our pre-litigation efforts. We tend to think of litigation as the last resort, but as Mike and Tyson both made plain, and I would surely agree, there's still a lot of work to do. So I'm not sure if that's directly responsive, but I will say this: There's a growing awareness of the risks of being on the wrong side of a First Amendment or free speech controversy on campus. There have been some actions taken at the university level to mitigate those risks or to comply with the responsibilities, but still much more work to be done.

 

Tyson Langhofer:  Yeah, I'll just weigh in. This is Tyson. I haven't talked specifically with the national organizations, but I've worked at the state level in helping to -- where states are looking at the FORUM Act. And the FORUM Act is, essentially, all it's really doing is codifying the current existing First Amendment jurisprudence. And unfortunately, we have received, in every state where I have worked, we have received a lot of pushback from the universities, the board of regents, and so forth, in pretty much every state, even though it literally is just codifying the existing First Amendment jurisprudence. And so there still is a decent amount of resistance to the types of protections that the First Amendment provides pretty much across the board.

 

Wesley Hodges:  Well, thank you so much for your question, caller. We do appreciate it. We do have another question in the queue. Let's go ahead and move to our second caller.

 

Joe McMenamin:  Yes. Hi, this is Joe McMenamin calling from Richmond, Virginia. I'll join the previous caller in thanking and praising you for the presentation. It's been quite informative. And I'm not a First Amendment specialist, so perhaps that'll be obvious from these questions. The first—and I have two, actually, if I may—the first is in the pleadings, is there an approach different that you take when you're dealing with a private college or university as distinct from a public one? And then secondly, and perhaps just a failure of imagination, but what possible argument is there on the other side, and in particular, what argument, if any, seems to enjoy some measure of judicial acceptance?

 

Tyson Langhofer:  This is Tyson. I'll weigh in initially. Everything we talked about today only applies to public universities. Private universities are protected by the First Amendment in their ability to -- basically, their freedom of association. So they have the ability to have policies that do not comply with the First Amendment, and we wouldn't challenge any private university's speech policies because, again, they have the right to do that, especially when you're talking about a private religious university who have the ability to regulate based upon their religious beliefs.

 

As far as the arguments against it, it typically comes down to -- they always rely on, essentially, security, the ability to maintain order and security on campus. We just received an order last night. We've got a case pending against the University of Minnesota where -- on behalf of Young America's Foundation and Students for a Conservative Voice related to a Ben Shapiro event earlier this year where the university essentially banished the Shapiro event to an undesirable location and imposed a 500-person participant restriction limit on it, all in the name of fear of security. And so what they try to do is play on this fear that the speech is too disruptive, or too difficult, or too controversial to hear, but what the Supreme Court has made clear is that it's the speech that the majority doesn't like that really needs protecting. And so that's the argument that we have to push back against.

 

Wesley Hodges:  Thank you, caller. We do appreciate your questions. Here's our next caller.

 

Leo Dombrowski:  Yes. Hi, this is Leo Dombrowski, Chicago Chapter. When colleges and universities are recruiting high school students, both public and private colleges and universities, they talk about how committed they are to open inquiry, freedom of speech, vigorous debate, etc. And unfortunately, as we know, that is often not the case. Is there any case to be made that these are binding promises, and that they are used to induce students to attend schools? I know here in Illinois, at least, employees have brought successful cases against employers for statements made in employee manuals. Is a case to be made there against schools based on the same theory?

 

Will Creeley:  This is Will here. I'll jump in and address that excellent question. There is jurisprudence that makes relatively clear that, to paraphrase, the relationship between a student and his or her university is contractual in nature. But courts have generally interpreted that basic premise with significant deference to university decision making, particularly as it regards academic decision making. We are seeing an evolution right now in higher education law regarding the binding nature of student handbooks and the language contained therein in the massive litigation filed by students who have been entangled in sexual misconduct hearings on campus, so making contractual arguments about the policies the university maintained to govern sexual misconduct adjudication on campus and the treatment they were actually afforded. So there is an argument, certainly.

 

Some state courts have recognized contract claims against universities with regard to the promises they make in their student handbooks and other materials. It's a right that FIRE certainly thinks should be upheld. We believe that if a college, a private university, which as Tyson correctly notes, is not bound by the First Amendment, in fact has its own First Amendment right to dictate the terms of its association and its students, but we believe that universities should be made to uphold the promises to students and faculty that they make. We've found that's a better case to make in the court of public opinion. We have not, as of yet, coordinated or filed a law suit against a private university that promised its students free speech but failed to deliver, but there is some suggestion that a case like that could be made.

 

There's also the question of accrediting bodies. Many accrediting bodies that accredit private universities do require those universities to allow for freedom of speech and freedom of conscience of their students, so that's another potential angle. There's an interesting article written by a former colleague of mine named Kelly Sarabyn on private collages. It's a good overview of the law and makes an argument that they should be bound contractually to the promises in their student handbooks, and you can find that article on our website at www.thefire.org.

 

Wesley Hodges:  Well, thank you so much, caller. We do have a couple more questions. Let's keep the ball rolling. Here's our next audience caller.

 

Caller 4:  Actually, the last caller asked one of the questions that I was concerned about was the possibility of contract claims against private universities. Separate and independent of that, the concept of academic freedom has some legal status, at least when applied to faculty members. Are you aware of any cases that recognize academic freedom as a component of a student's rights, whether at a public or a private school?

 

Tyson Langhofer:  This is Tyson. I'm not aware of any. That is a very amorphous term, and it is a difficult term because when you're talking about academic freedom, you do have to think about many different parties. You've got the academic freedom of the university to determine its curriculum, you have the academic freedom of professors in teaching, and you have academic freedom of students in learning and expressing what they learn. I think because of that, there has been less jurisprudence addressing that directly. They do it more in either the speech rights of the professor or student, and then from a university perspective, they do it more from their ability to carry out its educational objective. That's what I see, but Michael and Will might have a different take.

 

Will Creeley:  That sounds about right to me, Tyson. I appreciate your jumping in there. As Tyson says, academic freedom can be somewhat elusive in terms of who it protects and when. At its base, it's I think most readily thought of as a right that attaches to individual faculty members and/or an individual institution, depending on where the threat is coming from. But for students, it's a somewhat harder argument. At public universities, happily, you don't have to lean on the academic freedom argument quite as much because you've got the robust backdrop of the First Amendment and a very powerful body of case law in the aggregate to rely on making clear that public university students should enjoy academic freedom. And I should say, with regard to the last question, the vast majority of private universities notwithstanding—some religious institutions or sectarian institutions or other specific vocational schools or, for example, military academies—the majority of private institutions do promise students expressive rights and a general right to explore ideas.

 

So those are kind of my thoughts, and I mentioned earlier what we call the Chicago Statement. It's somewhat aspirational. I think it's probably more aspirational than a specific policy commitment, but in terms of annunciating an idea of academic freedom that would protect both students and faculty, it's a good place to start. The, perhaps, most memorable language is the idea that students should be allowed to challenge the unchallengeable and think the unthinkable, to paraphrase. And so that might be along the lines of what we think of when we describe the university campuses, uniquely the marketplace of ideas.

 

Wesley Hodges:  Well, thank you, caller. Let's go ahead and move to our next audience caller.

 

Caller 5:  Thank you for a really interesting and enlightening presentation. I worked for two different universities. One, the president was a moderate conservative, and he reached out and hired me specifically because of my reputation as a conservative. The second was an east coast university that I slipped under the radar. You mentioned the sources of resistance to First Amendment protections, and in my experience at the east coast university, all of the commissions, and student affairs groups, and enforcers were pretty much recruited on the basis of their left wing or LGBT ideologies. I wonder if that could explain some of the strong resistance you get at the university and if there's anything that could be done about it.

 

Michael Connolly:  This is Michael Connolly. One of the things that's pretty well documented is that unlike maybe the 60s or 70s, these days, the speech problems do tend to occur more from people on the left trying to shut down the speech of people on the right. Why that is, I have no idea. It might be because of what you're saying that there are more liberals in positions of power in universities, or perhaps the student body is like that. I really don't know. But it is certainly true that the speech being shut down these days tends to be conservative speech or libertarian speech.

 

Tyson Langhofer:  Yeah, this is Tyson. I think, unfortunately, what we see, and this is why we have all the protections in place that we do with our government, is whoever's in power at the time wants to shut down speech that they disagree with. And as of right now, especially over the last 15 to 20 years, the progressives and liberals have come to inhabit the academy in a much larger scale than they did before. I don't know if any of you all are aware, but Heterodox Academy that's started by Jonathan Haidt tracks this, and it shows going from about a 2-to-1 ratio liberal to conservative to about a 5-6 to 1 in most, and in the social sciences, about 60 to 1. And he, Jonathan, is a very liberal guy, but he is indicating that this is really undermining the ability of the university to be a marketplace of ideas because uniformity of thought breeds intolerance. And when you don't hear other ideas very often, once you hear them, they become much more objectionable to you. And so I do think it is really important that as a society, not only are we doing things to address the legal issues, but we have to address the intellectual diversity as well because you just can't have a marketplace of ideas when only one mode of thought is being promoted.

 

Will Creeley:  Yeah, this is Will from FIRE. I'll just jump in to those points and note that my boss, Greg Lukianoff, who coauthored a book with Professor Haidt, whom Tyson just mentioned, is fond of saying that students should find the smartest person they can who holds the opposite views and talk to them. And I think that's generally good advice. We like to say in-house here that if you go four years on a college campus without once being offended, you might want to ask for your money back. And we don't say that because we value offense for offense's sake, but rather that there is a utility, both pedagogical, and I would say personally and even sometimes socially, to confronting, understanding, engaging in dialogue with ideas that are sharply opposed to your own. And that's always very useful.

 

And the last thing I'll say is since we are a non-partisan organization, I'm invited to speak to students, and faculty, and university attorneys on colleges across the country, and that takes me from the Deep South, to the Northeast, to the West Coast and back again. And one thing that's been a lot of fun for me is to do events by law school FedSoc chapters and have them be cosponsored by the campus ACLU chapter or American Constitution Society chapter. I always think it's neat when I can start off my talk about the history of free speech on college campuses with professors being censored or fired for socialist views, run through LGBT groups being censored in the South in the early 80s, and then come to the 2000s and talk about the College Republicans at San Francisco State University, or students of faith, Republican students, Libertarian students, liberal students. Unfortunately, I've got too many examples.

 

And just as Tyson says, whoever is in power, it's a very old human urge to shut up those who aren't. So I tell students if you like free speech, stick around because sooner or later, you're going to have to defend it. And the point is to stand on principle, and hopefully that's a message that gets through. And I'm proud to report that when I do speak to groups that cut across partisan lines like that, usually, by the end of the talk, I can have them agreeing on that basic principle. If that happens, I feel like I've done my job.

 

Caller 5:  Got to love it. Thank you.

 

Wesley Hodges:  Well, thank you so much, caller. Looking at the time, we're near the top of the hour. I just want to take a moment and turn the mic back to our panel and see if they have any closing thoughts for us today.

 

Tyson Langhofer:  I'll just say one last thing. I think it's really important that, as we've talked about here, I definitely agree with Michael that I see a lot of this coming from the students. And what that tells me is that as a society, we have lost our respect for free speech, and the First Amendment, and the ability to dialogue. And that comes from every side. Every side has its problems. It doesn't matter whether it's liberals or conservatives. And so I do think it's our job to become educated on these and our job to talk about these issues, not just from a legal perspective, but more from a societal, cultural perspective to talk about the value of having different opinions and of not shutting down the other side, even when you really, really disagree with it or you're really offended by it. So I do think every one of us can play a part in that, not just those of us who litigate this on a daily basis.

 

Wesley Hodges:  Well, thank you so much, Tyson, Will, and Mike. On behalf of The Federalist Society, I would like to thank each of you for the benefit of your valuable time and expertise today. Everyone, we welcome your feedback by email at info@fedsoc.org. Thank you all for joining us today for this call. This call is now adjourned.

 

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