Less than a month after the Third Circuit decided McCauley v. University of the Virgin Islands, which granted standing to a student to challenge the unconstitutional portions of his university’s speech code even though many of the challenged provisions hadn’t been applied or even threatened to be applied to his speech, the Ninth Circuit reached a sharply different result, denying a student standing to challenge his university’s speech code despite suffering actual censorship. While the panel had no love for the university’s speech code, noting “serious concerns raised by policies that regulate speech on college campuses,” the court denied Jonathan Lopez standing to challenge Los Angeles City College’s expansive sexual-harassment policy.
I’ve written about this case before (full disclosure: I’m one of Jonathan’s lawyers). These are the basic facts:
Shortly after election day, one of Lopez’s teachers told his speech class that any individual who voted for Proposition 8 was a “fascist bastard” and argued that supporters of traditional marriage valued animals more than people. A few weeks after this declaration, Mr. Lopez gave a speech (in response to an open-ended assignment) in which he discussed his Christian faith and read from a dictionary definition of marriage. His professor interrupted his presentation, called him a “fascist bastard,” invited offended students to leave, and then (when no one left) terminated the class. Rather than grade his speech, the professor told Lopez to “ask God” what his grade was.
That was not the end of the matter. When Lopez complained of his treatment to the dean, the professor threatened Lopez with expulsion. When Lopez sent a more formal demand letter (through counsel), the school responded with an assurance that a confidential disciplinary process would be initiated but then went out of its way to note that other students complained that Lopez was “preaching hate” and “spout[ing] hateful propaganda.”
These hate-speech comments were particularly ominous, considering that the Los Angeles Community College District has a rather oppressive speech code, which permits the school to punish “offensive” speech or speech that has an undefined “negative impact” on a student’s academic performance (one section of the school’s policies even permits punishment for mere “generalized sexist statements”).
Despite these facts — and despite Jonathan’s teacher’s explicit threat to enforce the student code of conduct against him — the Ninth Circuit found that he did not have sufficient “injury in fact” to mount a facial challenge to the university’s sexual-harassment policy and reversed the district court’s preliminary injunction against the school’s policy.
Obviously, a circuit split this sharply (especially since the Third Circuit’s ruling in McCauley is actually predated by a high-school student-speech case authored by Justice Alito when he was on the Third Circuit) increases the chance of Supreme Court intervention. But for the moment we’re weighing our options. Further appeals are highly likely.