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Freer Speech at Georgia Tech

Georgia Institute of Technology has agreed to alter a campus policy that students who sued the institution assert has been used to restrict free speech, as part of an accord to settle part of the students’ lawsuit.

Two officers of the campus’s College Republican group sued Georgia Tech in March, saying that officials at the public institution had impaired the students’ free speech rights by shutting down their “affirmative action” bake sale and by limiting their efforts to protest against “The Vagina Monologues,” among other things. The Alliance Defense Fund, a legal advocacy group that represented the students, argued in its complaint in Sklar v. Clough that Georgia Tech officials had based their actions against the students on the institute’s residence hall policies, which defined a series of “acts of intolerance” that were banned under the policy.

Most objectionable to the student plaintiffs were provisions in the policy that restricted “any attempt to injure, harm, malign or harass a person because of race, religious belief, color, sexual/affectional orientation,” and any “denigrating written/verbal communication ... directed toward an individual because of their characteristics or beliefs.” The lawsuit defined those provisions as overbroad and “draconian.”

Georgia Tech officials denied that they had censored the students, and said they would vigorously defend the lawsuit.

But Monday, lawyers for the institution went before a federal judge in Atlanta with a plan, drafted with the Alliance Defense Fund, to alter or drop several provisions of the “acts of intolerance” policy. Among the changes, which the federal judge in the case approved, the university agreed to eliminate the provisions that had most troubled the students, as seen in the box below:

“Acts of Intolerance” in Ga. Tech’s Residence Hall Community Policy

Before the Lawsuit

After the Settlement

Any attempt that is reasonably certain to threaten, intimidate, harass, or otherwise injure a person because of race, religious belief, color, sexual/affectional orientation, national origin, disability, age, or gender.

Any attempt to harass or physically injure or harm a person.

Direct verbal threats to or intimidation of, or physical assaults upon, an individual because of their racial, ethnic, or sexual/affectional identity.

Physical assaults upon an individual because of their racial, ethnic or sexual/affectional identity.

Posting, painting, engraving or otherwise displaying threatening, intimidating, harassing, or otherwise injurious slogans or symbols on state property.

Posting, painting, engraving or otherwise displaying any sign, slogan or symbol on state property. Official announcements or other informational material distributed by Georgia Tech are excluded.

Public displays of cross burning, swastikas, or other hate-based conduct on personal or state property.

No changes made.

Sexual harassment and/or sexual assault of an individual, as defined in the GT Student Handbook.

No changes made.

Threatening, intimidating, harassing, or otherwise injurious written/verbal communications (including the use of telephones, emails and computers) directed toward an individual because of their characteristics or beliefs.

Deleted.

The parties also agreed that Georgia Tech would make no changes in the policy without the judge’s approval for five years. The agreement does not affect the rest of the lawsuit, including the students’ charges that their free speech rights had been infringed. The case will proceed.

A spokesman for Georgia Tech, David Terraso, sought to minimize the significance of the university’s concessions. He challenged the assertion that the now-amended policy is a “campus speech code,” saying that applies “only to students who live in campus housing.”

But David French, senior legal counsel at the Alliance Defense Fund, asserted that Georgia Tech has used the “acts of intolerance” policy to clamp down even on students who do not live in campus residence halls, and that it is the “only policy Georgia Tech has that would empower” its officials to take the actions they have taken against his clients.

More importantly, French said, “the fact that the policy exists, even independent of the incidents in the case, is a violation of students’ Constitutional rights.” So the fact that Georgia Tech has agreed to abandon key elements of the policy, he said, “is much more meaningful.”

“We have not yet dealt with the question of what happened in the past,” French said. “But Georgia Tech had on its books a policy that dramatically restricted free speech. Getting rid of that policy opens the market place of ideas in a formal sense. What this order deals with is the present and future.”

Doug Lederman

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Comments

Congratulations to ADF on another victory for the First Amendment.

K.T., at 7:25 am EDT on August 16, 2006

I read the article twice but could not understand exactly what the students did, or what the university did. Language here is puzzling. What actually happened? Well I will not find out here. I am trying to discern whether the university was “disproportionate,” or not. That is another new long word I just learnt. (We are getting too fancy to communicate.)

puzzled, at 7:50 am EDT on August 16, 2006

“viewpoint discrimination” if the institution allowed others to protest in similar locations... which is often the case where these “bake sales” occur. and, i am guessing the “vagina monologues” were protested outside a public building.

K.T., at 8:00 am EDT on August 16, 2006

Rules Typical In The Workplace

The rules of harassment at Georgia Tech are normal rules across the country in working environments. Most companies “protect” their workers from harassment by fellow workers with similar or indentical rules that step on the rights of other workers. Are those companies violating free speech? I’ve always thought so.And to the last commentor, the word is learned, not learnt.

Craig C, political pundit at http://blogresponder.blogspot.com, at 8:00 am EDT on August 16, 2006

“Are those companies violating free speech?”

They are private companies to which the first amendment does not necessarily apply. The Constitution is a check on government, not private organizations. Private universities may generally censor students, at will. For an example, see http://article.nationalreview.com...ZTg5YmQ4ODcxZGFhNmFkNjlhNGIxNGEyNTg=

K.T., at 8:30 am EDT on August 16, 2006

W-H-A-T!?!

“The rules of harassment at Georgia Tech are normal rules across the country in working environments ..”

Oh, yes .. how true. College campuses are just like corporate America. And Grover Furr and Ward Churchill are really VPs of Marketing. And we know where pigs fly out of.

Thanks for the laugh.

L.L., at 8:35 am EDT on August 16, 2006

A ban on signs and symbols?

Many of the Georgia Tech changes seem trivial or bad (what’s wrong with a ban on threats?), some are improvements, and one appears to be a terrible threat to the First Amendment. Is it really the case that now GT will ban “any sign, slogan or symbol on state property"? Here’s a slogan for you: Protect the First Amendment. Will that be banned from campus, or is something incorrect in this story?

John K. Wilson, at 9:30 am EDT on August 16, 2006

How true... having worked in both worlds, corporate America is a far more open and free environment than the Ivory Tower.

K.T., at 9:30 am EDT on August 16, 2006

Rambling Wreckage

I was certainly gratified to learn that the last clause in the University’s Code of Incorrect Behavior had been struck: “Threatening, intimidating, harassing, or otherwise injurious written/verbal communications (including the use of telephones, emails and computers) directed toward an individual because of _their_ characteristics or beliefs.” I was preparing to send the Emergency Hit Squad of the feared Grammar Police (not to mention a squad of the Bad-assed Bashers of Bureaucratese) into Georgia, and it’s still very warm in those parts.

Robert Hollander, Prof. in European Lit., Emeritus at Princeton Univ., at 9:50 am EDT on August 16, 2006

Craig, I think you misunderstand the law of sexual harassment. Again, I lack the qualifications to be a pundit like you, but here goes. Rules against sexual harassment directed at students create a constitutional problem which few people want to address.

Unlike assault or other violence, sexual harassment is not a crime. To sue an entity for sexual harassment, a plaintiff must claim (under a common law contract theory or a civil rights statute) that they were, in effect, discriminated against because of their sex.

The problem is that unless someone is acting on behalf of the school or the school is showing deliberate indifference to actual violence, then there isn’t a tort being committed.

This goes even further. If a person has a dirty picture in his cubical at work, and people see it, there may be a valid claim for sexual harassment. Not against the cubical-dweller, but against the employer, directly. However, where a person’s activities enjoy some constitutional protection, such as in the home (or even in some barracks or dormitories) a public entity cannot prevent people from feeling uncomfortable because of their gender. While the Republicans heart was in the right place, they seem to care more about protecting their own silly bake sale then they do actual substantive constitutional rights of others. In fact, I think their settlement is short-sighted. But, whatever. There will be other plaintiffs. Of course, you might not like them, Craig.

KT, To say that “Private universities may generally censor students, at will” is a bit of an overstatement. Students enjoy various contractual rights vis- -vis the University which at most schools usually parallel their First Amendment rights.

And, while we are on the subject, why didn’t the Republicans push for a change to the “no displays of swastikas” rule. After all, the swastikas is a symbol. It conveys a message. Sure, it is a very hateful message, but it was the symbol of a political party which has a platform, leadership, and all that stuff we seem to love.

Larry, at 10:40 am EDT on August 16, 2006

The terms of this settlement were agreed to by both Georgia Tech and the Alliance Defense Fund. So both of these parties agree that it is no longer proper to prohibit “Direct verbal threats to ... an individual". I’m astounded by this. (And you can’t argue it’s only threats “because of their racial, ethnic, or sexual/affectional identity” as the entire sentence has been deleted, and there can’t be a blanket ban on threats elsewhere in the policy as this sentence would have been redundant in the first place if there were.) Also, I’m wondering if Georgia Tech will be prosecuting students who tack a notice up on a residence hall bulletin board that they have a used textbook for sale, etc.

math prof, at 11:45 am EDT on August 16, 2006

The two women in this case were and are repeatedly harassed and threatened on campus with violence by those who claim to be “tolerant,” including hate-filled speech about their ethnicity and their appearance. What’s more, they are prohibited from exercising the same rights as other groups. The media (excluding IHE) may spin this story all they want, but they don’t know what’s really going on there and what these ladies are facing. I urge readers to find out what is really going on at GT.

Anonymous, at 2:15 pm EDT on August 16, 2006

Who gets to determine hate-filled speech and why should it be any less protected than any other speech, assuming it does not involve threats of violence. If someone wants to call me a f*gg*t, why should that not deserve the same protection for hateful-speech someone’s political affiliation with a political party or student group?

And, Larry you are correct if the institution has a policy mirroring the First Amendment. I was not referring to such institutions, which dig their own grave should they have such a short-sighted policy. Many institutions do not... at least the ones at which I have worked.

K.T., at 6:25 pm EDT on August 16, 2006

Its a sad day when in the 21st century we are still scratching our heads about conduct in a public institution. Of course we should protect the First Ammendment, but many of the posts here seem to be more interested in the right to b!@#ch undisturbed by other people’s rights to a safe environment. While I, too, disagree with the wording in the Georgia Tech laws, it seems to me that very EXPLICIT rules of conduct were necessary to secure a positive environment for the “others.” Its all really pathetic. We still can’t figure it out can we.

None, Sad day, at 8:55 pm EDT on August 16, 2006

“people’s rights to a safe environment”

Where is that a right? Yes, one should be free from physical harm according to the old adage that your rights stop where your fist meets my nose (or something like that).

But, there is no right to not be offended. Yes, common decency and civil behavior dictate refraining from such behavior. But, there is no natural law right to that effect. As a gay male, I will always protect someones right to insult me (yes, free speech is a right) with hateful names over my liberty to “feel welcome and accepted” (not a right) any day of the week.

Yes, my mother raised me on the old “sticks and stones” school. I would argue it is a sad day when we feel our feelings take precedence over others natural (and depending on your perspective, god-given) rights.

K.T., at 4:40 am EDT on August 17, 2006

Is that really Hollander?

Are you really Hollander or did you just use his name? Hmmm....Either way, I thought your comment was amusing. :)

Mindy, at 4:40 am EDT on August 17, 2006

the limits of rights

Anonymous, I like the fact that you urge people to find out what is “really going on.” However, since I try to stay far away from places like that and everyone in these cases has a real credibility problem (often they are unable to distinguish between politics and perception), the media is the best we will have.

KT, Since I didn’t have time to research this institution, and I don’t know what institutions you are at, I can’t really comment. But, in general, I see your point (heck, I thought I made it myself a few years ago): not having a “first amendment mirroring policy” essentially divests the institution of any claim to genuine academic freedom.

Going further, nobody really has a constitutional right to be safe, except, perhaps from government danger. There is no constitutional right not to be killed by a stranger acting independently of the government. Indeed, on a daily basis, people are raped, murdered, and yes, even OFFENDED by and not a single constitutional right is violated since none of them collected a government paycheck.

Now, of course, if there is a statute, and the statute is enforced unevenly, there might be an equal protection problem, but there the beef is with whichever entity decided not to enforce the law.

Larry, at 1:55 pm EDT on August 17, 2006

Larry:

Perhaps you can answer a question. In my various law classes (as part of a Ph.D. program, not J.D.), we read numerous cases that academic freedom belongs to the institution and not faculty members. The extension to faculty members is at the pleasure of the institution (through policies, etc.). I mentioned this a couple days ago in a meeting with faculty and you would have thought I said armageddon was upon us. True, false, somewhere in between?

[And, it is religious institutions where I am most accustomed to no such policies. More specifically (and hypothetically), why should a private muslim university have to put up with cartoons defaming allah, a christian university have to tolerate speech advocating acceptance of homosexuality, or a private institution dedicated to diversity have to tolerate hate speech.]

K.T., at 4:30 pm EDT on August 17, 2006

response to KT

KT, You are generally correct as a statement of the law as described by the Supreme Court. Obviously, when it comes to applying it there will be nuances, such as in the case where an individual professor makes non-academic statements that are used against him in an academic context. The other problem is that the famous “four freedoms” of a “university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study” (Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J. concurring)) obviously might be viewed as creating personal rights on the part of professors.

Larry, at 5:05 pm EDT on August 17, 2006

Vagina monologues protesting

KT., You might not even get this as it’s been a long time since the last posting here!

For the sake of first hand historical accuracy:

The vagina monologues were protested INSIDE a public building, the GT Campus Center, in a window display immediately adjacent to the window display for the Vagina Monologues. They were as close together as you are to your computer screen, and right inside the public building.

On one panel you could read about all the nice young women in the play, and on the adjacent panel, you could read about how those nice young women were demeaning all the other nice young women in the world.

By the way, the show was great.

shawn, senior engineer, at 11:05 pm EST on December 7, 2006

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