Phi Beta Cons

Georgia Tech’s Long, Winding Road of Deceit and Defeat

In March 2006 two brave Georgia Tech students, Orit Sklar and Ruth Malhotra, launched a challenge to several unconstitutional policies at the school. These policies included a speech code, a restrictive speech zone, discriminatory student-fee regulations, and a program of state religious indoctrination called “Safe Space” that explicitly compared those who have traditional views of sexual morality to slaveowners. (Full disclosure: Ruth and Orit are represented by the Alliance Defense Fund Center for Academic Freedom, and I am lead counsel in the case.)

Despite the fact that, if successful, Orit and Ruth would restore the First Amendment rights of every single student, they were immediately subjected to the most vile threats on campus and dishonest reporting off campus. The university’s own campaign of disinformation aided and abetted the students’ enemies.

At the outset of the case, the Los Angeles Times characterized the suit as nothing more than a quest to secure “the right to be intolerant.” Yet the Left on campus had always enjoyed the “right to be intolerant” and in fact exercised that right with gusto in the suit’s immediate aftermath, calling Ruth (an American of Indian descent) a “twinkie” (yellow on the outside, white on the inside), photo-shopping swastikas on her face, and literally hounding her at football games and other campus events. What Orit and Ruth were suing for was the right to respond to insults and threats (one e-mailer threatened to throw acid in Ruth’s face at graduation, and Ruth eventually needed police protection on campus) with their own respectful and civil dissent — a right previously denied them by the university administration.

When Ruth and Orit won a major victory — not only repealing Tech’s speech code but also forcing an agreement that prevented Tech from altering their new speech policies without judicial oversight — the Atlanta Journal-Constitution announced the change by declaring ”Insults Allowed at Georgia Tech.” Tech spun the repealed code as nothing more than a “very narrow set of guidelines,” ignoring the code’s own language and its previous expansive application to the plaintiffs themselves.

But Ruth and Orit were not finished. During the litigation, Tech dramatically changed its speech-zone policy, and earlier this year, the court struck down the challenged aspects of Tech’s “Safe Space” program. The court strongly criticized the university’s student-fee policy, but ruled that Ruth and Orit should have challenged the policy by suing the university’s board, not its president. So for those scoring at home, that’s three policies struck down or repealed and one called into question — out of four challenged.

So what does the university do? It puts out a press release essentially declaring victory, a release that spurred the judge to explicitly criticize Tech’s “lack of candor . . . throughout the litigation of this case.”  He went on to say:

Anyone with passing familiarity of the instant litigation would not be faulted for questioning the accuracy of numerous portions of this short press release.

In fact, all three of the four challenged policies are materially different than they were before the suit. As to the fourth, although the court did not order a change, the court did not discuss Georgia Tech’s student activity fee program for 23 pages in any way to ‘rule in favor’ of the program.

On December 23, the court put an exclamation point on its previous rulings by awarding Ruth and Orit $203,734.14 in attorneys’ fees and expenses. Unless Tech appeals this fee ruling, this litigation is finally at a close, and Orit and Ruth won. More precisely, the First Amendment won. Each and every student at Georgia Tech enjoys more liberty as a result of Orit and Ruth’s stand.

In a time of economic trouble, it is shameful to see universities spend hundreds of thousands of taxpayer dollars in futile quests to defend blatantly unconstitutional policies. Do the people of Georgia really want to pay for oppression and double standards?  

This litigation should present a cautionary tale for other universities. Defending speech codes will be costly, and it will be costly during a time of (justifiably) increased scrutiny of public expenses. Orit and Ruth’s fee award was not the first of its kind, and it will not be the last — so long as universities continue to value ideologically motivated censorship over the marketplace of ideas.

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