Monday, August 18, 2003

How big a ruling is it? 

The Volokh Conspiracy's David Bernstein has an opinion piece in the Washington Times today on free speech and campus speech codes, following on the Office of Civil Right's interpretation of the law. Prof. Bernstein explains some of the history of speech codes (the Santa Rosa case) and argues that for public schools, the days of speech codes may be closing.
Mr. [Gerald] Reynolds [assistant secretary of OCR] sent a letter to universities nationwide, clarifying that "OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." In other words, the federal government does not support speech codes that violate free speech. Public colleges with Orwellian speech codes can no longer justify them by hiding behind federal rules. ...

Speech codes enacted by public universities clearly violate the First Amendment, even if the codes are enacted in response to the demands of the OCR. So, requiring public universities to enact speech codes or forfeit public funds is obviously unconstitutional. Nevertheless, public university officials ignored the First Amendment and enacted (or retained) speech codes in compliance with the OCR guidelines. While a few schools may have been truly concerned about the potential loss of federal funding, the prevailing attitude among university officials seemed to be that the OCR's Santa Rosa decision provided a ready excuse to indulge their preference for speech codes.

Bernstein argues that the codes have been on "life support" from Clinton's Dept. of Education despite suffering several court setbacks. Eugene Volokh has commentary as well and he's less sanguine than Bernstein.
the OCR is indeed saying that universities should and may restrict otherwise protected speech -- speech that's not an otherwise punishable threat, libel, fighting words, etc. -- if the speech is (among other things) "severe, persistent or pervasive" enough "to limit . . . a student's ability to . . . benefit from an educational program" (judged from the perspective of a reasonable student as well as this particular student). This might ultimately prove to be a very narrow exception -- or it might not. ... the OCR's letter isn't bad, but it doesn't squarely put the Administration on the side of speech protection here. I wish that the OCR had instead stressed that the First Amendment doesn't allow the punishment of speech (unless the speech fits within the existing First Amendment exceptions, such as for threats or fighting words), and that there's no escape hatch for university administrators that want to stretch words such as "pervasive," "severe," "limit," or "ability to benefit."
I submit all this to the Scholars for discussion at our first meeting of the new school year, which alas approaches too quickly.