Sue Before You Graduate

A former college radio shock-jock who lost his radio spot is not protected by a California law designed to extend free speech rights to private colleges, according to a ruling this week by a state appeals court.

The court ruled that the Leonard Law, which protects students at private California colleges from “disciplinary sanctions” levied for speech that would be protected off-campus, only applies to students currently enrolled at an institution.

Jason Antebi, a 2004 Occidental College graduate who hosted a show at the college called “Rant and Rave,” was kicked off the show shortly after he called two identifiable  students' names – “bearded feminist,” and “douche,” respectively – on his show. Antebi, who said he was an outspoken conservative member of the student government, said that the students he made fun of had been publicly calling him racist, anti-Semitic, and said that he sexually harassed women.

Antebi said he complained to administrators, but when they didn’t respond, he took the fight to the airwaves. Within weeks of unleashing his select monikers, Antebi was forced to leave “Rant and Rave.”

A panel of three judges ruled that Antebi could not pursue damages under the Leonard Law, named for its chief legislative sponsor, because he had graduated by the time he filed a lawsuit. “This all happened just before I graduated,” Antebi said. “There was no way I could have gotten a lawyer and filed suit in time.”

The court opinion pointed out that the Leonard Law states in “plain language,” according to the opinion, that “any student enrolled … may commence a civil action.”

“The Legislature easily could have extended application of the statute with the words ‘any student enrolled or who was enrolled,’” the opinion adds.

Stuart Tochner, the lawyer for Occidental, added that the Leonard Law only allows students to have “injunctive and declaratory relief,” meaning that the court can order an institution to perform a certain action, but the law does not mention pursuing damages. “The fact that legislature decided that those are the only types of relief available,” Tochner said, “makes it crystal clear that the legislation is only for current students.”

Proponents of campus free speech said that the ruling, the first of its kind that any of them had heard with respect to the Leonard Law, could set a dangerous precedent.

Mark Goodman, director of the Student Press Law Center, said that he thinks that the court’s interpretation of the Leonard Law is “certainly not what the intent of the legislature was in enacting the statute … it really effectively means that [institutions] can censor all they want if they do so in the last semester of the student’s senior year.”

Greg Lukianoff, president of the Foundation for Individual Rights in Education, said that, under the court’s interpretation of the Leonard Law, an institution could protect itself by simply expelling a student, because the student would no longer be enrolled, and thus would be in the same situation as Antebi.

Christopher W. Arledge, Antebi’s lawyer agreed, and said that “this loophole that the court has opened is a big one.”

Bill Leonard, formerly a member of the California State Assembly, and author of the Leonard Law, said that, without thoroughly reviewing the court’s opinion, he thinks that it “narrowly might be correct” in deciding that Antebi was not protected.  Leonard said that “the intent of the law was to protect students from academic discipline due to the exercising of their free speech rights.” Leonard said he’s disappointed that Antebi was taken off of his show, but said that Antebi’s removal does not constitute academic discipline.

Leonard said he created the law to prevent, for instance, a college from withholding a student’s grade unless they take sensitivity training. “Things that would affect their academic career,” Leonard said. He added that, if the opinion is extended so that expelled students – who have suffered academic harm – are not protected, “it would be wrong.”

Beyond the Leonard Law, the court upheld a trial court’s dismissal of six of Antebi’s seven claims. The six claims were dismissed on the basis that they “arise out of the disciplinary procedure.” For example, Antebi claimed that Occidental violated the Family Educational Rights and Privacy Act of 1974 by releasing information about him during an investigation of Antebi that occurred after the students he insulted filed sexual harassment complaints based on the insults.

The court ruled that, because any alleged FERPA violation would have been part of the disciplinary process, Antebi has no basis for a claim.

Arledge said that the ruling leaves no room for a student to seek damages for any tort committed as part of an institution’s disciplinary procedures.

The court did rule that Antebi can go ahead with his defamation claim against Sandra Cooper, Occidental’s general counsel. According to court documents, Antebi said that, in March 2004, about two weeks after the controversial radio show, Cooper yelled into a hallway at Antebi that he was, among other things, “racist,” sexist,” “immoral,” and “trash.” Antebi said that other people in the hallway heard the comments.

Tochner said that Cooper denies the allegations, and that “we’re confident that the college will defend [the defamation claim] if it ever goes forward.”

Arledge said that he plans to appeal to the Supreme Court to overturn the dismissals, and that Antebi, who now works for a radio station in Los Angeles, will pursue the defamation claim.