Phi Beta Cons

The Right take on higher education.

FIRE Weighs In


Yesterday, FIRE filed an amicus brief in a vitally important case against Temple University.  In support of this brief, FIRE assembled a remarkable coalition of organizations, including Students for Academic Freedom, the Student Press Law Center, the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Individual Rights Foundation, and 

This ideologically diverse coalition united against a common enemy: Temple University’s former speech code.  In early 2006, Temple graduate student Christian DeJohn filed a facial challenge to Temple’s sexual harassment policy, a policy that – among other things – prohibited “generalized sexist remarks” and prohibited any speech uttered with the subjective intent to create an undefined “offensive” environment regardless of the actual effect of the speech on campus.  In other words, if a university official thought a student made an “offensive” comment – even if no one was actually offended or no student was harmed in any way – then the school could apply its policy and punish the speaker. 

On the eve of the summary judgment deadline in the case, Temple amended its policy to bring it into constitutional compliance.  At the same time, however, it continued to defend its old policy as not just constitutionally appropriate but as necessary to prevent sexual harassment.  The trial court disagreed, and on March 22, 2007, permanently enjoined Temple from re-imposing its old policy.  Temple promptly appealed.

In the meantime, the Supreme Court reached its decision in Morse v. Frederick, holding that a high school could punish a student for advocating illegal drug use.  On the day the decision was announced, I posted my objections to the ruling and said:

And what does this all have to do with universities, you ask?  In every single free speech case I’ve ever argued, the university’s first line of defense is the high school speech standard.  When high school student rights shrink, universities grow bolder.  In fact, I would be surprised if the “Bong Hits” case is not raised in at least two pending Alliance Defense Fund university speech cases. We shall see if the courts will continue to distinguish between secondary school and universities — especially in the face of serious institutional pressure to blur the differences.

Sometimes I don’t like to be right.  Temple is one of the two cases I mentioned above and – sure enough – one of the university’s central arguments is that Morse gives universities broad powers to censor student speech.  FIRE and the broad coalition of conservative and liberal organizations on the FIRE brief understand that the Morse virus must be contained and the marketplace of ideas must be preserved. 

At the end of the day, the Temple case is likely to represent the first published federal appellate case dealing with a facial challenge to a university speech code and certainly the first federal appellate court to respond to the contention that the Morse decision has any effect on the rights of adult college students.  It is incredibly heartening to see a true left-right coalition unite to defend our most fundamental constitutional values.  Thank you, FIRE, and thank you to each group on the brief.


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