Phi Beta Cons

The Right take on higher education.

Why Do Universities in the Third Circuit Continue to Defy the Law?


All the way back in August 2008, the U.S. Court of Appeals for the Third Circuit issued a landmark ruling striking down Temple University’s speech code. The court’s opinion was notable not simply because it struck down a university speech policy (many courts had done that), but because it struck down the most common form of speech code on American campuses — a sexual-harassment policy that prohibited words that have the so-called “purpose” of creating an undefined “offensive environment” regardless of the actual effect of the words themselves. This functions as an effective ban on speech that officials subjectively perceive as “offensive” and cannot be reconciled with decades of Supreme Court authority.

Following this ruling, I had high hopes that other universities in the Third Circuit would reform their policies — especially when FIRE sent letters to administrators at 20 public universities in the circuit informing them of the decision and their responsibility to conform with the law. But the speech codes persist.

Now some students have had enough. Working with the Leadership Institute and Young America’s Foundation — two groups fighting the good fight on college campuses — the Alliance Defense Fund and its allied attorneys are taking the fight one step farther: sending letters on behalf of students at five public universities in the Third Circuit requesting that they comply with the law.

How bad are the universities’ policies? ADF’s Casey Mattox has some choice excerpts, including the following from Rutgers:

At Rutgers University, students are encouraged to report “bias incidents” by fellow students, including any “verbal, written . . . or psychological” act that “maligns” a person on the basis of a number of bases including religion, sexual orientation, and others. Such acts warrant “intervention” where they lose a student to “lose confidence in their ability to participate in the educational mission of the university.” So a conversation or an email about religious differences that the listener or recipient thinks “maligns” their religion warrants punishment. And if all that weren’t enough, the department responsible for deciding whether a student’s email or conversation is a punishable “bias incident” is the “Center for Social Justice Education and LGBT Communities.” The exact role of any kangaroos in the proceedings is unclear.

This is the beginning of an effort to bring Third Circuit universities in compliance with the law. After all, there is simply no good reason to deny students their most basic constitutional liberties.


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