Over at FIRE’s must-read blog, the Torch, Samantha Harris notes Edinboro University of Pennsylvania’s decision to hide their unconstitutional speech code behind a password-protected website. One of the more curious aspects of the university’s behavior has been its administration’s persistent refusal to change unconstitutional policies in the face of unanimous case law or even — in Edinboro’s case — controlling legal authority. It’s almost as if universities have an ideological commitment controlling student expression. But that couldn’t be right, could it?
Edinboro may hide, but it can’t run, and I have little doubt that its speech code will soon be repealed (perhaps by court order). This exercise in technological creativity reminds me of the greatest hits of other Pennsylvania public-university free-speech evasions. My favorites include Shippensburg University’s declaration, when their speech code was first challenged in 2003, that the code was “never enforced” and a mere exhortation to civility. The plaintiffs promptly produced evidence of enforcement. Then, in 2007, Shippensburg violated the terms of the 2004 settlement agreement by re-instituting its old speech code and claimed that it was all the students’ fault — as if students anywhere have final editorial control over university policies. (FIRE has thoroughly documented the Shippensburg saga).
But nothing matches — for sheer audacity — Temple’s claim in the course of litigation in 2006 that the plaintiff couldn’t challenge some of the more grotesquely unconstitutional aspects of its sexual-harassment policy because he couldn’t prove that policy statements on the the university’s own website were, in fact, Temple policies. What were the alternatives? Someone hacked into Temple’s website to create an unconstitutional harassment policy? It was the free-speech equivalent of a cop frisking a suspect, finding weed and a bong in his pocket, and then hearing, “What? How’d that get there? That ain’t mine!”