Free Speech, The Disfavored Stepchild Of The Law

In a recent column, George Will discussed how college students have been disciplined for racial or discriminatory “harassment” for constitutionally protected expression, such as reading a history book about ugly past racial events, or discussing unpleasant truths about racial or religious matters:

In 2007, Keith John Sampson, a middle-aged student working his way through Indiana University-Purdue University Indianapolis as a janitor, was declared guilty of racial harassment. Without granting Sampson a hearing, the university administration — acting as prosecutor, judge and jury — convicted him of “openly reading (a) book related to a historically and racially abhorrent subject.” . . .

The book, “Notre Dame vs. the Klan,” celebrated the 1924 defeat of the Ku Klux Klan in a fight with Notre Dame students. But some of Sampson’s co-workers disliked the book’s cover, which featured a black-and-white photograph of a Klan rally. Someone was offended, therefore someone else must be guilty of harassment. . .

At Tufts, a conservative newspaper committed “harassment” by printing accurate quotations from the Quran and a verified fact about the status of women in Saudi Arabia. . . .

In 2007, Donald Hindley, a politics professor at Brandeis, was found guilty of harassment because when teaching Latin American politics he explained the origin of the word “wetbacks,” which refers to immigrants crossing the Rio Grande. Without a hearing, the university provost sent Hindley a letter stating that the university “will not tolerate inappropriate, racial and discriminatory conduct.” The assistant provost was assigned to monitor Hindley’s classes “to ensure that you do not engage in further violations of the nondiscrimination and harassment policy.” Hindley was required to attend “anti-discrimination training.”

Why does this sort of nonsense persist? One reason is that college administrators don’t fear First Amendment lawsuits very much. If a state university violates the First Amendment, often it pays nothing for the violation. The Eleventh Amendment protects a state university from having to pay any monetary damages for such a violation. (The Supreme Court has said that Congress can waive Eleventh Amendment immunities to protect civil rights, but Congress has only done so for discrimination cases, not First Amendment cases.)

State university officials — as opposed to the university itself — can be individually sued for First Amendment violations under 42 U.S.C. 1983, but they are protected by the defense of qualified immunity from having to pay any monetary damages at all, unless the court finds that they not only violated the First Amendment, but did so in a very clear way that was obviously unconstitutional under an appeals court’s own past rulings, or past rulings by the Supreme Court — any legal ambiguity, and they are protected against damages. (See, e.g., Reichle v. Howards, 132 S.Ct. 2088, 2094 (2012) (the right “violated must be established, not as a general proposition, but in a particularized sense”); Harrell v. Southern Oregon University, 474 Fed. Appx. 665 (9th Cir. July 20, 2012) (circuit court of appeals granted qualified immunity because “the appropriate speech standard for college and graduate students’ speech remains an open question in this circuit“; First Amendment violation must be “sufficiently clear that every reasonable official would have understood” that it was illegal) (emphasis added).)

And the university sometimes manages to avoid any injunction or attorneys fees being awarded against it by dropping the challenged speech restriction or discipline at the last minute, before trial, thus mooting out the lawsuit on the eve of what would otherwise be a defeat for the school. Free speech may be priceless, but for a school’s bottom line, First Amendment violations are cheap.

Colleges fear many other kinds of lawsuits much more. For example, colleges live in fear of even the remote possibility of a discrimination or harassment suit, which can lead to lottery-sized damage awards against the college — and in some cases, individual college administrators — even if the harassment was by a student, not school staff, and the school itself tried (imperfectly) to stop it. Neither qualified immunity nor the Eleventh Amendment shield against suits brought under laws like the Rehabilitation Act, Title VI, or Title IX. Recently, the Second Circuit Court of Appeals upheld a million-dollar damage award against a school district under Title VI of the Civil Rights Act, for racial harassment committed against a student by his classmates, since it said the school district’s efforts to stop the harassment were “half-hearted” and thus insufficient to avoid liability. The school district in Zeno v. Pine Plains Central School District should have prevailed under the governing legal standard laid down by the Supreme Court — which requires the plaintiff to show “deliberate indifference,” not mere negligence, by school officials, in order to qualify for monetary damages — but the appeals court ignored the obvious difference between indifference and negligence, and upheld the massive damage award after finding the school district failed to respond as required by Education Department guidance and court rulings — even though that guidance and those court rulings predated the Supreme Court’s Gebser and Davis decisions requiring a showing of deliberate indifference, rather than mere negligence, and thus could not justify holding the school district liable. (Universities’ liability for harassment is sometimes even broader under state law, since state sexual- and racial-harassment laws in states like New Jersey only require a showing of negligence by the school district for liability, unlike the federal laws, Title VI and Title IX, which require a showing of “deliberate indifference”; and since punitive damages against a school are sometimes available under state law, unlike their federal counterparts, Title VI and Title IX.) Damages in other types of discrimination cases can also be massive, such as the case discussed at this link, in which a dental student obtained a $1.7 million award over a on her disabilities-rights claim, including a $1 million punitive damages award against an individual associate dean who allegedly failed to accommodate her attention-deficit disorder.

Partly to avoid potentially massive liability for harassment and discrimination under state and federal law, colleges have created intricate civil-rights and human resource bureaucracies. For example, in 2011, the University of California at San Diego created a new full-time “vice chancellor for equity, diversity, and inclusion.” As Heather Mac Donald notes, this position augmented “UC San Diego’s already massive diversity apparatus, which includes the Chancellor’s Diversity Office, the associate vice chancellor for faculty equity, the assistant vice chancellor for diversity, the faculty equity advisors, the graduate diversity coordinators, the staff diversity liaison, the undergraduate student diversity liaison, the graduate student diversity liaison, the chief diversity officer, the director of development for diversity initiatives, the Office of Academic Diversity and Equal Opportunity, the Committee on Gender Identity and Sexual Orientation Issues, the Committee on the Status of Women, the Campus Council on Climate, Culture and Inclusion, the Diversity Council, and the directors of the Cross-Cultural Center, the Lesbian Gay Bisexual Transgender Resource Center, and the Women’s Center.”

By contrast, there is no institutional apparatus on campus designed to protect free speech or avoid First Amendment violations. Thus, perhaps it should not be too surprising when a college’s racial harassment bureaucracy convicts a student of racial harassment for First Amendment activity like “openly reading a book related to a historically and racially abhorrent subject.” Colleges have created a large, overzealous, hair-trigger bureaucracy to deal with allegations of real or imagined harassment, which inevitably results in some cases of non-harassing speech or innocent activity being erroneously treated as harassment. Colleges view it as better to avoid any risk of a racial-harassment lawsuit that could cost a college a bundle (even at the risk of some false convictions), rather than guarding against a First Amendment violation that will cost a college very little. Thus, students have been disciplined for racial or sexual harassment for expressing commonplace views on subjects such as affirmative action, feminism, and the death penalty. See Brief Amici Curiae of Students for Individual Liberty et al., in Davis v. Monroe County Board of Education, 1998 WL 847365 (filed Dec. 8, 1998) (No. 97-843). A costly racial-harassment lawsuit was brought against a college and a professor over the professor’s emails on racially charged immigration topics; a federal trial judge in Arizona refused to dismiss the lawsuit against them, saying that the emails constituted illegal racial harassment; the harassment lawsuit was later dismissed on appeal by the Ninth Circuit Court of Appeals on First Amendment grounds; the appeals court cited the fact that the emails were not aimed at any of the specific Hispanic plaintiffs who sued over them, and thus were protected even if they were viewed as a “racially hostile work environment.” (See Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010).)

Once upon a time, the Supreme Court spoke of free speech as having a preferred position among legal rights, saying that “freedom of speech” and “freedom of religion are in a preferred position,” and that a “preferred place” and “priority” are “given in our” constitutional “scheme to the great, the indispensable democratic freedoms secured by the First Amendment.” (See Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943), West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943), and Thomas v. Collins, 323 U.S. 516, 529 -30 (1945).)

Sadly, the legal community no longer feels the same way today. Free speech is the disfavored stepchild of the law.