Legal issues

No Academic Bill of Rights?

On May 30, the U.S. Supreme Court ruled that the First Amendment does not protect government employees from being disciplined for speech or writing "made pursuant to official responsibilities." While the ruling in Garcetti v. Ceballos specifically excluded the research and teaching of faculty members at public institutions, at least for now, the decision is almost certain to have some campus fallout.

The case was brought by Richard Ceballos, an assistant district attorney in Los Angeles, who wrote a memo recommending dismissal of a prosecution because the affidavit that police used to obtain a search warrant was inaccurate. Supervisors were openly unhappy with the memo and went forward with the prosecution in spite of it. Ceballos alleged that afterwards they penalized him by reassigning him to a different job and by denying him a promotion. While lower courts found that no retaliation had  occurred, the Ninth Circuit Court of Appeals disagreed, further  
ruling that Ceballos’s unwelcome memo was protected under the First Amendment. The Supreme Court reversed the Ninth Circuit’s decision on the grounds that the memo was not protected speech, and remanded the case for reconsideration.

In the majority opinion, written by Justice Kennedy, the Court noted that the First Amendment would have protected Ceballos had he been penalized for articulating an unpopular view as a citizen, commenting on politics or other matters of public interest that any citizen might be concerned about, even if they were matters that fell within his particular expertise. Since he was expressing an opinion not as a concerned citizen but as part of his job as a government employee, and in a 5-to-4 decision, the justices concluded that on-the-job speech and writing of public employees are excluded from First  Amendment protection.

In his dissent, Justice Souter expressed the fear -- voiced by a number of faculty groups once the Supreme Court agreed to hear the case -- that the ruling could dilute the academic freedom of instructors at public colleges. Addressing this concern, the Court’s opinion  specifically sidesteps the issue of academic freedom, leaving it for another day, and another case: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for  that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."

This apparent exception is being viewed both as a victory and as a challenge for academic freedom -- a victory because it specifically  separates academic expression from the broad doctrine of work-related speech being laid down; a challenge because it leaves academic freedom hanging by what may prove to be a slender thread.

After reading Ceballos, instructors at public institutions could easily conclude  that academic speech retains the special protections they have come to expect under the principles of academic freedom  articulated by the AAUP and subscribed to by most public and private colleges. But to a less optimistic observer the academic freedom exception is a typical Court hedge: we’re not asked to decide whether academic speech is protected today, so we won't. Furthermore, the carefully qualified, almost skeptical, wording -- "there is some argument" that academic discourse "implicates additional constitutional interests" -- would seem to invite a test case to resolve the matter.

We may not have to wait long for such a case. Conservative activists are urging states to adopt an "Academic Bill of Rights" aimed not at protecting academic speech but at ridding colleges of left-leaning  faculty. The American Council of Alumni and Trustees has published a report critical of liberal faculty who replace traditional curricula with multiculturalism, Marxism, godlessness, and evolution. David Horowitz has published a list of the 100 most dangerous -- that is, liberal -- professors in the United States. And the Pennsylvania state legislature has set up a select committee to investigate the tyranny of the liberal elite who supposedly control that state’s public colleges.

With all this hoopla, so far there’s no evidence of a liberal plot to control academia and deny students an education, and so far there have been no prosecutions. But in such a climate -- one we haven’t seen since Senator McCarthy and HUAC took on the universities in the 1950s -- faculty can expect to be challenged, whether they are outspoken liberals or conservatives, or they go quietly about their teaching and research without making many waves; or they belong to the growing group of untenured, temporary, and part-time instructors afraid to say anything even with the protections of academic freedom, for fear they won’t be reappointed.

If a test case involving academic speech does arise, a Supreme Court already unwilling to extend First Amendment protection to public employees ranging from ADA’s to office clerks to medical personnel in state-run facilities could easily extend the doctrine espoused in Ceballos to the classroom.

But applying Ceballos to academic discourse produces unexpected  results. The First Amendment prohibits Congress from making laws abridging the freedom of speech. Both public and private employees, when acting as ordinary citizens rather than employees, enjoy First Amendment protection when they express opinions. Protections on employee speech are different. Employers have always been able to control the on-the-job discourse of workers, and the courts have typically supported them in that effort.

The Supreme Court’s new conservative majority ruled against Ceballos -- Justice Alito cast the deciding vote -- because he is an employee. That he is a government employee simply does not matter. Were Ceballos expressing a political opinion, his speech would be protected, but memos written as part of his job were not.

Using the same reasoning, the Court could just as easily decide that the political speech of academics is protected when it is not part of their job, but that anything academics say or write when they’re at work -- not just memos or e-mails to students, but their scholarship and their teaching -- actually falls outside the umbrella of the First Amendment.

Adding Ceballos to the mix of what’s protected and was isn’t could let whimsy and prejudice play a significant role in regulating academic speech, just as it now plays a role in regulating what happens to a district attorney who suggests that the police are fabricating evidence in order to get a search warrant. A department head, a dean, a provost, a president, even a trustee who doesn’t like what a faculty member says for any reason, academic, religious or political, could discipline the faculty member for it in the same way that Ceballos’s supervisors didn’t like his criticism of the police, and disciplined him.

Worse still, if a parent, a state legislator, or a watchdog group exerts pressure on the institution because of a faculty member’s professional positions on multiculturalism or postcolonialism, on evolution or the big bang, as stated not in letters to the editor or at town meetings, but in published research or in the classroom, the institution could decide to remove the pressure by silencing the speech.

Of course all of this is conjecture. There is no test case. The Supreme Court has not imperiled academic speech. Even the "Academic Bill of Rights" insists that its goal is to defend academic freedom, though the AAUP, whose principles of academic freedom are liberally co-opted in that document, is skeptical of that claim. But academics and Court watchers would do well to anticipate the chilling impact that the Ceballos decision will have, both in the district attorney’s office and beyond, effects that could eventually affect those of us  who work in public institutions of higher education.

Author/s: 
Dennis Baron
Author's email: 
info@insidehighered.com

Dennis Baron is professor of English at the University of Illinois at Urbana-Champaign.

The Brave New World of MySpace and Facebook

College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.

Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.

Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student.  In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft.  Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.

Information that students may think is personal could be viewed by potential employers if posted on social networking sites.  As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception.  Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.

A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.

Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standard described this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”

Students have been found guilty of violating these student regulations at numerous schools.  At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football.  After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.

In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites.  Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.

In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.

Challenges for Colleges, Too

Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.

Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.

Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.

Second, if the institution monitors this activity, why has it chosen to do so?  If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.

Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.

In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered.  If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.

Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.

Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.

Author/s: 
Sheldon Steinbach and Lynn Deavers
Author's email: 
info@insidehighered.com

Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes

Better Than Expected, Worse Than It Seems

There was a national sigh of relief on campuses in June when an altered U.S. Supreme Court left standing the historic 2003 Grutter v. Bollinger decision supporting affirmation action in admissions. There had been widespread fear among civil rights advocates that a more conservative Supreme Court would seriously undermine or even reverse the 5-4 Grutter decision with its author, Justice Sandra Day O’Connor, no longer on the Court. The voluntary school integration decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education was, indeed, a serious reversal for desegregation in K-12 schools but while divided on the constitutionality of the school plans at issue in the cases, all nine justices agreed that the decision had no impact on the Grutter precedent. The rights of colleges to use race in admissions decisions for student body diversity had survived scrutiny by the most conservative Supreme Court in more than 70 years. Since the Supreme Court rarely takes such cases, the Grutter precedent might last for a while. While a bullet was dodged, optimism should be restrained. The dike protecting affirmative action has held but the river that brings diverse groups of students to colleges may be drying up as a result of the latest decision.

Colleges and universities, especially selective institutions, tend to draw their successful minority applicants from interracial schools and their admissions offices know well that many of the segregated minority high schools fail to prepare their students well enough to succeed in college. Research by the Civil Rights Project has shown that too many segregated urban high schools are "dropout factories" where the main product is dropouts and successful preparation for college is rare. Conservative economist Eric Hanushek found that the damage was worst for the relatively high achieving black students, the very students likely to comprise the college eligible pool. So making segregation worse cuts the number of well prepared students. In addition to academic preparation, students from segregated backgrounds are also often not ready to function socially on a largely white, affluent campus. It also means of course, that the most segregated group of students in American schools, whites, also have less preparation to deal successfully with diversity. So colleges may have won, but also lost.

Even before the new decision, segregation had been on the rise for almost two decades in American public schools, partially as a result of three decisions by the Supreme Court limiting desegregation in the 1990s ( Board of Education of Oklahoma City v. Dowell, Freeman v. Pitts and Missouri v. Jenkins). Because this new decision struck down the most common methods of creating integrated schools in districts without court orders to desegregate, it will likely precipitate further increases in segregation. Since 1980 the tools most commonly used to create integrated schools combine parental choice of schools with magnet programs and racial diversity guidelines. Now the limitations that prevented transfers and magnet choices that increased segregation are gone and districts have to decide whether to do something more complex and multidimensional or abandon their integration efforts. It remains to be seen what will happen in various districts, of course, but the experience of other districts that have ended the consideration of race as a criteria in their student assignment policies suggests that race-neutral methods will lead to resegregation and growing inequality.

Research thus suggests that there are two significant implications for higher education to consider. First, rising segregation is likely to bring a rise in educational inequality and less prepared black and Latino students. Second, all incoming students are likely to have fewer interracial experiences prior to attending college meaning they will be less prepared for effective functioning in an interracial setting.

The Seattle and Louisville cases produced an outpouring of summaries of a half century of research by a number of groups of scholars. A subsequent review of the briefs by the non-partisan National Academy of Education confirms the central premise of Brown v. Board of Education that racially isolated minority schools offer students an inferior education, which is likely to harm their future life opportunities, such as graduation from high school and success in college. Racially isolated minority schools are often unequal to schools with higher percentages of white students in terms of tangible resources, such as qualified, experienced teachers and college preparatory curriculum, and intangible resources including low teacher turnover and more middle-class peers -- all of which are associated with positive higher educational outcomes.

Although colleges and universities differ in their criteria and process for admissions, common elements to their admissions decisions for students include 1) whether a student has or will graduate from high school, 2) standardized test scores, and 3) number of advanced and Advanced Placement courses. Research consistently finds that minority students graduate at significantly lower rates in racially isolated minority schools; in fact, minority isolation is a significant predictor of low graduation rates, even when holding constant the effects of other school performance indicators. Academic achievement scores of students are also lower in segregated minority schools, and this effect can cumulate over time for students who spend multiple years attending segregated schools. Finally, many predominantly minority schools do not offer as extensive advanced curricular opportunities and levels of academic competition as do majority white or white and Asian schools.

In addition to offering different opportunities for academic preparation, research has also found that integrated schools offer minority students important connections to competitive higher education and information about these options. There are strong ties between successful high schools and selective colleges. Minority students who graduate from integrated schools are more likely to have access to the social and professional networks normally available to middle class white students. For example, a study of Latino students who excelled at elite higher educational institutions found that most students had attended desegregated schools -- and gained academic confidence as well as critical knowledge about what they need to do to accomplish their aspirations (e.g., which courses to take from other, college-going students).

White students also lose if schools resegregate. Desegregation advocates assert that public school desegregation is powerful and essential because desegregated schools better prepare future citizens for a multiracial society. A critical component of this preparation is gaining the skills to work with people of diverse backgrounds. Segregated schools in segregated neighborhoods leave white as well and nonwhite students ill-prepared for what they will encounter in colleges and university classes or in their dorms.

Over 50 years ago, Harvard psychologist Gordon Allport suggested that one of the essential conditions to reducing prejudice was that people needed to be in contact with one another, particularly under appropriate conditions. Research in racially integrated schools confirms that, by allowing for students of different races and ethnicities to be in contact with one another, students can develop improved cross-racial understanding and experience a reduction of racial prejudice and bias. Importantly, research suggests that other interventions such as studying about other groups are not as effective or as long-lasting as actually being in contact with students of other racial/ethnic backgrounds.

Research on graduates of racially integrated elementary and secondary schools has also found that students who graduated from these settings felt their integrated schooling experiences had better prepared them for college, including being more interested in attending integrated higher education institutions. The Civil Rights Project has surveyed high school juniors in a number of major school systems around the country and students in more diverse schools report feeling more comfortable living and working with others of different backgrounds than did their peers in segregated high schools.

As schools become more segregated, it will become more incumbent on colleges and universities to intensify their outreach and retention programs to improve access for all students, and to consider the extra burdens borne by the victims of segregation who have done nothing to deserve unequal opportunities. In particular, it will be critically important for colleges and universities to continue to use race in their outreach and retention programs. As colleges and universities that have sought to defend affirmative action policies have long understood and Justice Anthony M. Kennedy recently wrote, “The enduring hope is that race should not matter, the reality is that too often it does.” Further, the need to help students understand how to productively live with others from diverse backgrounds will fall to higher education. As other institutions retreat from mirroring the racial diversity of our country, this may increasingly become a responsibility universities must shoulder.

Our incoming students already have more limited interracial experiences than the last generation of students, a trend that is likely to only get worse. We hope that many school districts will continue to value integration and seek more comprehensive policies under the new guidelines set forth in Justice Kennedy's controlling opinion, but it is very likely that segregation will worsen. We believe that university faculty and researchers who may have expertise to assist local school districts find legal and workable solutions to maintain diversity should offer support at this critical time. Universities can also take a public leadership and education role in continuing to argue for the importance of integrated educational settings. These actions could help limit some of the ill effects of the resegregation of local schools and help keep alive the legacy of Brown in a period of judicial retreat.

Author/s: 
Gary Orfield, Erica Frankenberg and Liliana M. Garces
Author's email: 
info@insidehighered.com

Gary Orfield is a professor at the University of California at Los Angeles and co-director of the Civil Rights Project/Proyecto Derechos Civiles. Erica Frankenberg and Liliana M. Garces are doctoral candidates at the Harvard University Graduate School of Education and research assistants at the Civil Rights Project. Orfield and Frankenberg are co-editors of a recently published book, Lessons in Integration: Realizing the Promise of the Racial Diversity in American Schools (University of Virginia Press). Garces, formerly a civil rights lawyer, served as counsel of record in the 553 Social Scientists brief submitted in support of the desegregation plans in the Seattle and Louisville cases.

FERPA Allows More Than You May Realize

Recent campus incidents have highlighted the importance of effective communication among administrators, faculty, and staff, as well as between campus representatives and students, families, and surrounding communities. Some commentators have argued that these incidents prove the need to amend the Family Educational Rights and Privacy Act, the federal statute known as FERPA that protects student privacy, in order to permit greater disclosure of information about troubled students. Actually, the current law works well, but colleges and universities need to better understand what that law really provides -- and each institution needs to develop an internal consensus on how to approach the policy choices FERPA allows it to make.

Colleges have worked hard to educate their employees on the importance of protecting student privacy. This effort has been motivated in large part by the need to comply with FERPA. For example, following the terrorist attacks of 9/11, many campuses had to remind their personnel to protect the privacy of students against illegal disclosures of information motivated not by rational concern but by prejudice and bias many outside academe had against certain international students.

Legitimate interests in student development have also motivated concerns for privacy. Under ordinary circumstances, according college students a measure of privacy -- even (or perhaps especially) from their own parents -- can without question help their development into independent, autonomous adults. FERPA itself actually reflects this period of transition by shifting primary legal control of the student’s records from parents to the student once the student attends a college or university.

In some circumstances, FERPA has been invoked as the reason not to share student information, when in reality the law would permit disclosure but the interests of student development and autonomy weigh against it. For example, FERPA permits but does not require colleges and universities to notify a student’s parents of certain drug and alcohol violations of the institution’s disciplinary code. Many institutions do not notify parents of every incident involving a minor illegally in possession of alcohol, choosing instead to begin with an educational intervention to assist the student in making better choices, and only notify parents in cases of repeated, serious, or dangerous violations.

The decision not to disclose less serious violations is a policy decision, and should be understood and described as such. It should not be held out as a decision required by FERPA. Unintended and potentially dangerous consequences can arise if legitimate policy goals are confused with legal mandates because institutions may then forget that FERPA grants them discretion. It is especially important to remember that FERPA expressly permits appropriate disclosures in times of actual or potential emergency, as well as in various less drastic circumstances in which an individual seeks to communicate sincere concerns for a student’s well-being or the public welfare.

Although FERPA restricts disclosures of information obtained from a student’s records, it was never intended to act as a complete prohibition on all communications. One threshold point that is often overlooked is that FERPA limits only the disclosure of records and information from records about a student. It does not limit disclosure or discussion of personal observations.

In other words, if a college or university employee develops a concern about a student based on the employee’s observations of or personal interactions with the student, the employee may disclose that concern to anyone without violating, or even implicating, FERPA. (Of course, there may be other reasons an institution would not want to, or could not, disclose that concern, and, in most cases, the initial disclosure should be made to professionals trained to evaluate and handle such concerns, such as campus mental health or law enforcement personnel, who can then determine whether further and broader disclosures are appropriate).

Even when information is part of a student’s records and therefore covered by FERPA, the law provides several exceptions that permit appropriate communications under circumstances in which the student or others may be at risk of harm. For example, FERPA expressly permits the disclosure of information from a student’s records “…to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

This exception doesn’t permit indiscriminate disclosures of personal information, but it does set a fairly low threshold of good faith for determining when disclosures are needed to protect health or safety, what disclosures are appropriate, and to whom they may be made. FERPA also permits disclosures, among others, of any information about a student to other college officials with legitimate interests in the information or to the parents of that student if he or she is their dependent for tax purposes; of information regarding the results of certain student conduct proceedings involving violence to the general public; and of any relevant information to other schools where a student seeks or intends to enroll.

The National Association of College and University Attorneys (NACUA) has just published a “FERPA and Campus Safety” Q & A to provide accurate information about FERPA to campus administrators and others. This document answers frequently asked questions about FERPA and suggests important elements to consider in setting institutional policies. And while advocating compliance with FERPA, it also puts into perspective the critical importance of campus and public safety in today's world.

This is not to suggest that colleges and universities that have dealt with complicated situations and made difficult decisions have done so in anything less than good faith. Nor, certainly, is it to say that concerns for student development and autonomy have no place in the analysis when determining what, when, and to whom to disclose. But institutions should recognize these concerns for what they are -- self-imposed policy constraints, not legal mandates -- and balance them accordingly, and responsibly, against other equally relevant policy considerations such as safety. If we don't, others may well make the choice for us, quite likely without full consideration of the factors that are important to us and in ways that we won't like. It is thus critical that colleges and universities evaluate in advance both their understanding of FERPA and how they will exercise their discretion under it in response to campus incidents.

Author/s: 
Nancy E. Tribbensee and Steven J. McDonald
Author's email: 
info@insidehighered.com

Nancy E. Tribbensee is general counsel for the Arizona University System. Steven J. McDonald is general counsel at the Rhode Island School of Design.

The Court Got It Right

This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong -- and it’s important for both students and university administrators to understand why.

In February of 2006, Christian DeJohn filed a complaint in federal district court alleging that Temple had violated his First Amendment rights by punishing him for political expression. Among other serious allegations, DeJohn’s complaint charged that Temple’s sexual harassment policy (which, for example, prohibited “generalized sexist remarks”) violated his First Amendment right to free expression. DeJohn asserted that he felt inhibited from discussing his views on the role of women in the military, among other issues, and worried that he could be punished under Temple’s policy for expressing his opinions.

Seeking to obviate DeJohn’s First Amendment challenges, Temple revised its sexual harassment policy in 2007 by scrapping the sections of its policy at issue before the district court. Having done so, Temple asked the court to dismiss the portion of DeJohn’s complaint that related to the sexual harassment policy. However, the district court denied Temple’s motion, arguing that nothing prevented Temple from reinstituting the original policy following the conclusion of DeJohn’s suit. In March 2007, the district court found Temple’s now-abandoned sexual harassment policy to be unconstitutional on its face and issued an injunction against its enforcement.

Temple appealed the district court’s ruling to the Third Circuit in April 2007. This month, the Third Circuit ruled in favor of DeJohn, concluding that Temple’s former sexual harassment policy was unconstitutionally overbroad and affirming the lower court’s holding. Explaining that “[d]iscussion by adult students in a college classroom should not be restricted,” the court found that Temple’s former policy prohibited constitutionally protected speech and was therefore unacceptably overbroad.

Some critics of the opinion argue that the court should have found DeJohn’s claims moot since the university voluntarily revised the policy before the appeal was heard. But in the opinion, the Third Circuit rejected the mootness argument. Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.” Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.

Indeed, Temple’s brief on appeal argued vehemently for the constitutionality of its former policy. Temple’s aggressive defense of its policy was fueled by outside events: between the time the District Court found the policy unconstitutional and the Third Circuit was to hear the appeal, the U.S. Supreme Court issued a significant decision that Temple hoped would change the outcome of its case.

In Morse v. Frederick, decided in June 2007, the Supreme Court held that a public high school did not violate the First Amendment in suspending a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. In their appellate brief, Temple seized on Morse and sought to expand its holding. Temple contended that Morse granted public colleges broad authority to restrict the speech of adult college students in the same way that high schools could regulate the speech of their students (who are generally under 18) -- an expansion particularly threatening to free speech and academic freedom on college campuses. As a result, Temple argued, its sexual harassment policy was acceptable in the post-Morse environment.

Given Temple’s argument that its sexual harassment policy was constitutionally permissible in light of new legal precedent, it is not surprising -- and hardly a mark of activism -- that the Third Circuit felt compelled to issue a decision on the case. But in reaching its decision on mootness, the Third Circuit did not fashion new legal principles out of whole cloth. Rather, the court followed the explicit guidance of its own precedent -- which, as the opinion notes, “articulate[s] the burden for the party alleging mootness as “‘heavy,’ even ‘formidable.’” Indeed, every aspect of the Third Circuit’s decision relies heavily on appropriate precedent, whether from its own appellate decisions or those of the Supreme Court. If anything, Temple’s brief argued for the more “activist” outcome by claiming that the Supreme Court’s narrow holding concerning high school students in Morse could be used to justify maintaining an overbroad speech code in the collegiate setting. Had the Third Circuit applied a high school case like Morse to colleges and universities, the resulting opinion would have represented a sea change in our legal thinking about college students’ rights, opening the door to the wholesale evisceration of free expression on campus.

Not only is the Third Circuit’s ruling in DeJohn not “activist,” it is not political, as some have charged. DeJohn is squarely in line with 50 years of Supreme Court decisions placing special emphasis on the importance of free speech in higher education, as well as two decades of district court decisions uniformly ruling that at public colleges, speech codes (often masquerading as anti-harassment policies)are unconstitutional. In this case, opposition to Temple’s speech code brought together groups as ideologically varied as the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Student Press Law Center, Students for Academic Freedom, Collegefreedom.org, and the Alliance Defense Fund. If anything, opposition to speech codes has transcended partisan divides, as judges and advocacy organizations from all over the country and the political spectrum agree that such codes are incompatible with fundamental First Amendment freedoms and the unique role of the university in American life.

DeJohn’s critics also argue that the Third Circuit erred by considering DeJohn’s claims against Temple without what they consider to be ample evidence that DeJohn had been specifically harmed by Temple’s sexual harassment policy. Robert M. O’Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression, told Inside Higher Ed that he found the Third Circuit’s opinion to be “very ominous” because he believed the court did not sufficiently consider whether DeJohn was actually affected by the policy. O’Neil said the court offered “no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy.”

Facial challenges for overbreadth are a unique, well-established and crucial aspect of First Amendment law. Recognizing that First Amendment rights are “supremely precious in our society,” the Supreme Court developed the overbreadth doctrine to protect speech from the chilling effect that occurs when a law or regulation is written so broadly that it reaches substantial amounts of protected speech. Plaintiffs may challenge allegedly overbroad statutes “as written,” rather than “as applied,” on behalf of those not in front of the court. The idea is that anyone subject to a law or policy that restricts his or her right to freedom of speech may challenge it on behalf of all citizens negatively affected by the constitutional violation.

Contrary to O’Neil’s characterization that there existed “no proof” that DeJohn “reasonably felt threatened” by Temple’s policy, the Third Circuit determined that, as a Temple student, DeJohn suffered from the policy’s existence. As the court noted, DeJohn argued that the policy made him feel “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, the policy had an impermissible “chilling effect” on his right to free expression. DeJohn was “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the university” -- and by concluding that Temple’s policy “provide[d] no shelter for core protected speech,” the Third Circuit accepted these concerns as legitimate and reasonable. Because the Supreme Court has held that even a fleeting loss of First Amendment freedoms “unquestionably constitutes irreparable injury,” the Third Circuit was absolutely correct in determining that DeJohn had suffered sufficiently to entertain his facial challenge.

The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.

The Third Circuit adhered strictly to the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, a 1999 opinion holding that actionable harassment is limited to that behavior so “severe, pervasive, and objectively offensive ... that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Third Circuit made clear in DeJohn that Davis’s standard must be carefully followed, writing that “[a]bsent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work,” harassment policies like Temple’s provide “no shelter for core protected speech.”

If anything, the most noteworthy aspect of the Third Circuit’s ruling was the court’s refusal to import Morse’s restrictions on student speech into the university setting. That is a victory, because treating the First Amendment rights of university students as functionally equivalent to those of high school students fundamentally confuses the unique pedagogical missions of each level of schooling. The Third Circuit’s clear pronouncement that the First Amendment rights of adult college students must not be abridged should be welcomed by public universities, not feared.

Author/s: 
William Creeley, Samantha Harris and Greg Lukianoff
Author's email: 
info@insidehighered.com

Will Creeley is a lawyer and the director of Legal and Public Advocacy for the Foundation for Individual Rights in Education. Samantha Harris is a lawyer and the director of Spotlight: The Campus Freedom Resource for FIRE. Greg Lukianoff is a lawyer and president of FIRE.

Sotomayor and Our Future

Sonia Sotomayor’s nomination marks a historic occasion in America. Assuming she is confirmed, being the first Latina to serve on the Supreme Court will cause enormous cultural ripple effects. Just as the aspiration to become president became more authentic for black children who witnessed Barack Obama’s election, Sotomayor’s confirmation will provide inspiration for young Latinos to dream big. But we must tread lightly.

Many try to use Obama’s election to declare the country to be in a “post-racial era” – a fact apparently confirmed by the election of a black man, proving that racism and discrimination are behind us. If we’re not careful, Sotomayor’s confirmation could be used by some as evidence that the educational system is fine and provides all with equal opportunity to attain the American dream.

The reality, of course, is more complex.

Public discourse over the meaning of Sotomayor’s nomination has in recent weeks become a convenient vehicle for some to debate affirmative action. This debate cuts two ways. While some use Sotomayor's nomination to claim we have leveled the playing field and reached a post-racial era, there is also a vocal contingent accusing her of being racist and of being too pro-affirmative action. The fervor caused by her statements about the contributions of a "wise Latina," or the troubling lack of Latino faculty members in her own education is a potent reminder of how unwilling we all are to engage in a constructive discussion about the role and significance of race and ethnicity in American society. I plan to join this debate and make the case in a future essay about the utility of affirmative action policies and practices. We must be willing to engage in real discussions about how race and ethnicity can describe us, not divide us.

The Latino population in the United States -- Mexican, Puerto Rican, Dominican, Cuban, Central American and others -- is the youngest and fastest growing segment of an increasingly diverse United States. But we are still disproportionately poor and undereducated. Nowhere is the division between Latinos and other ethnic groups starker than when it comes to achievement in higher education. Research, as well as personal experience, shows that race and ethnicity do matter. In fact, paying attention to differences while working to engage and serve all Americans is the hallmark of the most effective higher education reform efforts. But while our country has witnessed a steady increase in college participation rates for Latino students, up almost 25 percent between 2000 and 2004 according to the U.S. Department of Education, completion rates for Latino students have barely changed in three decades.

That’s not due to lack of desire: A recent survey sponsored by Oppenheimer Funds Inc., "College Within Reach," shows that Hispanic Americans are strongly committed to a college education as a part of fulfilling the America dream. In fact, 61 percent of Hispanic parents agreed that Obama's rise to the presidency "proves that a good education makes anything possible." In a floundering economy, however, only a small percentage is able to save up enough to make that dream a reality.

Sotomayor, who from humble beginnings in the South Bronx went on to excel at Princeton University as an undergraduate and at Yale University’s law school, is an extraordinary striver. She will be, and should be, an inspiration for young Latinos and Latinas -- in fact, for all young people. She is exceptional and the exception. We must not allow recognition of her achievements to mask the challenges faced by Latinos across this country for whom an Ivy League education is out of reach.

Nor should she be attacked for being mindful of the range of unique experience she brings to the Supreme Court as a Latina. Society is strengthened when leadership in the White House and state houses, in corporate boardrooms and federal and state courtrooms, and on campuses and in classrooms more fully reflects and acknowledges the challenges of the least well served of our population.

The opportunity for America lies in harnessing the potential of our young Latino population and helping them – and as a result, the nation – to thrive. This is not simply an issue of good will but a matter of necessity. Today, 37 percent of the more than 40 million Latinos in this country are under 20 years of age. By 2020, Latinos will make up 22 percent of the nation’s college-age population, according to demographic estimates today. The critical question is whether Latinos will actually reach college and, once there, succeed.

We need an expanded, educated workforce to manage the jobs of the future, but America’s workforce is increasingly falling behind the pack, becoming less skilled and less competitive. According to a 2007 report, while 30 years ago the United States could claim 30 percent of the world’s population of college students, that proportion has fallen to 14 percent and is continuing to decline.

The coincidence of a Latino population boom and a projected American workforce unprepared for high-skill jobs of the future is sometimes described as a crisis and used to forecast the end of U.S. economic dominance. But that’s a skewed picture. There are many benefits to a booming U.S. Latino population comprised of ambitious, hard working individuals, simply waiting to be tapped. "Latinos have saved our country," argues Ken Gronbach, author of The Age Curve: How to Profit from the Coming Demographic Storm. "They represent 14 percent of the population but 25 percent of live births. The United States is the only Western industrialized nation with a fertility rate above the 2.2 percent replacement rate." Latino growth spurs the economy, contributes to keeping the Social Security system solvent, and will help prop up the real-estate market once the economy begins to recover.

But Latinos can do more than revive markets and pay for aging baby boomers — we can produce more extraordinary teachers, scientists and judges. Those concerned with the development of America’s human capital, as well as those who advocate on behalf of underserved Latino communities nationwide, can agree on one thing: Education, and particularly higher education, is, and has always been, the most promising pathway to a brighter future.

A new report from Excelencia in Education, Leading in a Changing America: Presidential Perspectives from Hispanic-Serving Institutions, shows how some colleges and universities have found innovative ways to significantly increase the successful participation of “nontraditional” students: those who are part-time, lower-income, commuting, older and students of color. Most Hispanic students fit these categories, and they thrive with culturally relevant support and scheduling that addresses the realities of their lives.

These institutions are front runners as the country is nearing a paradigm shift in education. Many colleges and universities still don’t adequately meet the needs of a large percentage of the Latino college-age population. If Latino college degree production does not improve, the country’s projections for college degree production will not improve. Where will that leave us in 2050, when Latinos are predicted to be a fourth of the population?

Responding to this challenge requires keeping Latino academic expectations high for the newly arrived, as well as for Latinos who have been in this country for generations --and encouraging all to fully participate in American society. The significant numbers of Latinos in the armed services demonstrates their willingness to invest in this country. Imagine matching their commitment to this country with real access and support to earn a college degree.

By implementing strategies to help Latinos succeed in higher education, we ensure that our country remains competitive, that a greater segment of the U.S. population succeeds economically, and that we enhance the opportunity for this country to be strengthened by the outstanding abilities of those who will follow Sotomayor’s path. Already, it’s possible that somewhere in our country the first Latino – or Latina – President of the United States — sits in a classroom. This child’s potential will be fully realized when education affords him or her the best chance of achieving all that he or she dreams.

Author/s: 
Sarita E. Brown
Author's email: 
info@insidehighered.com

Sarita Brown is President of Excelencia in Education, an organization that aims to accelerate Latino higher education success.

Not So Wilde

Our long national nightmare is over ... at least until next time. The trial of Michael Jackson has now moved into the phase of "post-production," as they call it in Hollywood. Now work is under way on the voice-overs and flashbacks -- and the crews are getting ready to start broadcasting the next celebrity legal circus.

On Monday -- just a day before the verdict was announced -- Elaine Showalter published a short essay in the Los Angeles Times comparing Jackson's trial to the legal ordeal of Oscar Wilde in 1895. "Wilde too was a celebrity, as a writer and as a performer," she wrote. "Like Jackson, Wilde was seemingly brought down by self-destructive acts." In each case, "accusations of homosexual pedophilia have struck a deep chord of moral outrage."

"Wilde," according to Showalter, "was convicted of what the Victorians, with their gifts for euphemism, called 'gross indecency.' Despite the specific charges against him, gross indecency also seems to be the underlying accusation in the Jackson trial."

It's by no means clear that the term "gross indecency" could be regarded as euphemistic, even in the Victorian context. By contrast, Wilde's reference during the trial to "the love that dare not speak its name" was a memorable case of euphemism yielding eloquence.

The problem with Showalter's essay turns on more than semantics, however. Sure, there are points of similarity between the trial, but even a brief comparison of them shows that the differences are huge. Some currents in American culture might be dubbed Victorian -- if only through an abuse of analogy. The real connection between Wilde and Jackson is a little less obvious, though, and perhaps more worrisome.

Now, to be honest, I did not follow the recent trial very closely. The nature of this kind of spectacle is that, unless you make every effort to remove yourself from the "flow" of current media, a certain amount of information imposes itself on your awareness, come what may.

The Wilde trial fascinated its public because it was the revelation (a momentary glimpse) of something ordinarily hidden. The Jackson trial, by contrast, was an instance of what Jean Baudrillard has dubbed "the obscene" in the postmodern sense -- a mode in which nothing is concealed, in which every sign or bit of information manages to circulate. ("Obscenity begins," as Baudrillard puts it, "when all becomes transparence and immediate visibility, when everything is exposed to the harsh and inexorable light of information and communication.")

Reading the transcripts of Oscar Wilde's trials (there were three of them), one thing you soon notice is that his creative work and his vision of the world were under just as much scrutiny as his private life. If anything, his aesthetic sensibility (in particular, his insistence that art and morality had nothing to do with one another) was slightly more horrifying to the authorities than his sexual tastes. The power of Wilde's art to corrupt the minds of the young incensed the Victorians even more than what he did with any given teenage male prostitute.

The standoff between the attorney Edward Carson's high-minded outrage and Wilde's defense of art-for-art's-sake makes for a transcript that reads like an excerpt from one of Wilde's plays.

Carson: A perverted novel might make for a good book?

Wilde: I don't know what you mean by a "perverted" novel.

Carson: Then I will suggest Dorian Gray as open to the interpretation of being such a novel?

Wilde: That could only be to brutes and illiterates. The views of Philistines on art are incalculably stupid.

Carson: An illiterate person reading Dorian Gray might consider it such a novel?

Wilde: The views of illiterates on art are unaccountable. I am concerned only with my view of art. I don't care twopence what other people think of it.

Carson: The majority of persons would come under your definition of Philistines and illiterates?

Wilde: I have found wonderful exceptions.

Carson: Do you think that the majority of people live up to the position you are giving us?

Wilde: I am afraid they are not cultivated enough.

Carson: Not cultivated enough to draw the distinction between a good book and a bad book?

Wilde: Certainly not.

Carson: The affection and love of the artist of Dorian Gray might lead an ordinary individual to believe that it might have a certain tendency?

Wilde: I have no knowledge of the views of ordinary individuals.

Carson: You did not prevent the ordinary individual from buying your book?

Wilde: I have never discouraged him.

Were sparks this brilliant ever struck during the past few months? Did the relationship between Jackson's art (or entertainment, rather) and his life ever come up for questioning?

Who can doubt that, were Jackson to announce his intention to take up residency in Massachusetts so as to marry a longtime boyfriend of suitable age, the response of most fans would be to send a card expressing best wishes?

Let's not pretend that nothing has changed in 110 years. I bet Hallmark has the design all worked out.

Wilde was accused and convicted of defying the norms of his day. That was the source of the case's resonance, at the time. And Wilde himself embraced (in however complex and ironic a manner) the idea that he had violated the established code. Later, when asked how he survived prison, he responded: "I was buoyed up with a sense of guilt."

Today Wilde looks heroic. What to his contemporaries would have seemed like incorrigibility, we now honor as fidelity to his own nature.

In any case, the hold of Wilde's case on the public mind was -- and still is -- a matter of his grand transgression. It bears scarcely any resemblance to the fascination evoked by Michael Jackson, who embodies something quite different: regression. His retreat to a childlike state appears to be so complete as to prove almost unimaginable, except, perhaps, to a psychiatrist.

Freud wrote of a neverending struggle between the pleasure principle (the ruling passion of the infant's world) and the reality principle (which obliges us to sustain a certain amount of repression, since the world is not particularly friendly to our immediate urges).

Wilde was the most eloquent defender that the pleasure principle ever had: His aesthetic doctrine held that we ought to transform daily life into a kind of art, and so regain a kind of childlike wonder and creativity, free from pedestrian distractions.

Like all such utopian visions, this one tends to founder on the problem that someone will, after all, need to clean up. The drama of Michael Jackson's trial came from its proof that -- even with millions of dollars and a staff of housekeepers to keep it at bay -- the reality principle does have a way of reasserting itself.

And now that the trial is over, perhaps it's appropriate to recall the paradoxical question Wilde once asked someone about a mutual friend: "When you are alone with him, does he take off his face and reveal his mask?"

Author/s: 
Scott McLemee
Author's email: 
scott.mclemee@insidehighered.com

In Loco Parentis, Post-Juicy Campus

The legal and practical implications of colleges standing in loco parentis (latin for “in the place of the parent”) have waxed and waned over the history of higher education.

Colleges traditionally had the same rights and responsibilities as parents; the power to discipline the student as a parent could, but also the liability for harm that befell the student. Both the rights and responsibilities of in loco parentis began to recede as the Woodstock generation declared its independence. As the boomers asserted their freedoms at colleges and universities across the nation, in loco parentis fell away, and with it came a legal regime that treated colleges and universities as bystanders, rarely responsible for harms that befell students. And yet those same boomers, hovering over their children like “helicopters,” now insist that colleges take responsibility for the actions of their millennial children due to the “special relationship” that they believe forms upon enrollment.

As Inside Higher Ed reported, Security on Campus (SOC), a campus safety advocacy group, has interpreted a recent letter of findings by the Department of Education's Office for Civil Rights (OCR) regarding an incident involving a Hofstra University student, to impose a new responsibility on colleges and universities -- “the same obligation to respond to sexual harassment in cyberspace that they have when the harassment occurs in the classroom.”

If what SOC is saying is that they read this findings letter to require campuses to take on the in loco parentis responsibility of protecting students from activities that occur outside of the campus environment, that is not an accurate reading of the OCR decision. Rather, the letter found insufficient evidence of any wrongdoing by the campus inasmuch as the parent of the complainant did not provide sufficient information to the campus.

Contrary to the SOC press release, the letter of findings did not reach the merits of the case. The language cited by SOC as creating a “first of its kind” standard is simply the boilerplate language describing the law and jurisdiction standards that OCR includes in its letters. One sentence of boilerplate that should be noted, however, states “[l]etters of findings are not formal statements of OCR policy and should not be relied upon, cited, or construed as such.”

Juicy Campus and its ilk are a result of some uniquely millennial math. The rise of Facebook, Myspace and other social networking sites allowed first young people (and increasingly many older folks, too) to transform their anonymous selves into mini-celebrities, sending out tiny bursts of “press release” on their minute-by-minute activities, opinions on sports, politics and celebrities, and relationship status. The ideal for some was to acquire as many "friends" as possible and send them as many press-release “updates” and “tweets” as time and patience would allow. Concurrently, celebrity blogs like Perez Hilton and Pop Sugar would casually insult traditional celebrities, instantaneously sharing even the glitterati’s most mundane private secrets, while thousands of anonymous comments spewed forth all manner of vitriol. It was not long before the two forces would meet with anonymous students summoning up their e-courage to cyber-slime their mini-celebrity friends and classmates.

What resulted were anonymous gossip sites that targeted ordinary individual students. Juicy Campus was the best known of these sites. Started by a recent Georgetown University graduate in 2007 ostensibly to discuss important campus issues, the site facilitated anyone to post essentially any statement about any topic or any person, true or otherwise. While some topics on these sites are mild, much is lewd, insulting and often times horrifying.

Unlike the “bathroom wall” of old, here professors, potential employers and grandmothers could log onto a Web site and read the gossip. Juicy Campus closed its doors in February of this year, although other, less-well-known sites such as College Anonymous Confession Board (ACB) and Campus Gossip continue on. Juicy Campus may be gone, but the genre is not. Like the National Enquirer and other supermarket tabloids, the site was universally denounced, but a popular read on campuses. It took the Internet to turn public slander into a private, anonymous weapon which, once created, will never fully recede.

When Juicy Campus arrived on a particular campus, the first instinct of student affairs professionals was one of pure in loco parentis protectionism; they sought to block network access to the site. Two campuses did so. Yet blocking is inadvisable for several reasons.

First, these sites are not hosted on campuses so the college has no more jurisdiction than it does over the bathroom wall of a local bar. Blocking such sites is as effective as telling students they cannot drink at said bar; it will only pique a prurient interest. Second, now that the Blackberry, iPhone and other Internet-capable smartphones have become almost ubiquitous on campus, students are not limited to accessing the Web over a college broadband network; if students cannot access content on their college network, they will access it on their phone, at the local Starbucks, or while at an off-campus apartment.

Blocking may even discourage students from accessing the Web through the campus network, sending them to the more expensive, but less regulated, Internet services offered by cable, telephone and cellular companies. Finally, when a college blocks one offensive site, it had better be prepared to block all offensive sites. It is hard to justify blocking Juicy Campus (or its progeny) but not blocking Neo-nazi sites, antisemitic, racist or homophobic sites, or, in traveling down the slippery slope, political and media sites that include language offensive to some students. Free speech is so central to the experience at most colleges that a process of blocking offensive sites would quickly lead college administrators down the garden path.

The costs to students of anonymous cyber-sliming are not small. Self-harming thoughts and activities, cutting, and suicidal ideation were reported among students who were victimized on these sites. Unfortunately, when the danger and harm to students comes from outside (especially digital) sources such as anonymous gossip Web sites, there is little that a college can do. Holding colleges responsible, as Security on Campus argues, for “stop[ping] the harassment of ... students on gossip sites in cyberspace” sets up an impossible standard for colleges to meet. Even more extreme, the idea that somehow an “effective response” by a college might entail “schools shut[ting] down these sites altogether” is beyond the pale.

Colleges have no such power over Internet sites. The days of Web site operators receiving cease and desist letters from colleges and quickly deleting the content while begging for mercy are long over (to the extent they ever existed). Today's Web site operators have a healthy skepticism for legal notices, may have their own lawyers, or take the legal stance that Juicy Campus took -- Section 230 of the Federal Communications Decency Act protects the site from liability for content created by individual users. Juicy Campus declared on its Web site that with the exception of lawful subpoenas and certain violent threats, it would not take down most posts even when contacted by college presidents.

Also discomforting is a logical extension of SOC’s expansive argument, that if a student complains about harassment on a Web site and the campus does not make heroic efforts to silence the slander, the campus would take on liability for later harm against the student, whether inflicted by another or by the student him or herself. Contrary to the widely-read SOC press release, such revolutionary change in college responsibility is best left to courts and legislatures, not to a controversial reading of an OCR letter that found no liability.

Yet courts are not likely to make such a leap. For public policy reasons, courts will often assign responsibility to the party able to prevent harm in the most efficient way. Here, colleges have no real power to prevent such harm, and assigning such responsibility would not efficiently empower colleges to protect future student victims. While, in some cases, colleges may appropriately act when threats or insults are hurled on campus by members of the college community (including when community members identifiably use cyberspace to defame other community members); colleges can do little with truly anonymous speech in cyberspace.

With the digital age in full swing, colleges must reconceptualize what it means to act in loco parentis, and how, to the extent they can do anything, they can best serve their students. The answer is not to read into OCR investigations a new era of control and responsibility. Disaggregated problems require disaggregated solutions. Colleges cannot wrap their students in bubble wrap whenever they venture outside of their comfortable residence halls, and even bubble wrap does not protect against digital slander. Rather than reasserting rights and responsibilities under in loco parentis and seeking to envelope students in a protective aura, colleges should return to their core mission and educate students on how to interact within, and protect themselves from, the dangers posed by the digital world.

Through extracurricular education, colleges can empower students to turn the tables on challenges within the digital environment and use the tools presented by the Web to their benefit. In another generation, lessons on how to balance a checkbook would help students better navigate their world. Today technology services and student affairs staff can join their professorial colleagues in educating students, concentrating on imparting lessons that help students navigate the churn and froth of the digital environment (a good example of such education is Tracy Mitrano's “Thoughts on Facebook”).

Whether it is through orientation sessions, programs and speakers spread throughout the academic year, e-mails and advice letters, or other means, colleges are in a strong position to provide a robust education on practical lessons students must learn outside of the classroom. In so doing, colleges can best empower young people to defend and protect themselves in the digital environment, both as students and later as alumni. Holding colleges responsible for policing cyberspace won't protect our students or serve their educational needs.

In part two of this series, Benjamin Bleiberg and I will lay out the framework for a set of disaggregated resources and strategies students can use when confronted by digital defamation.

Author/s: 
Joseph Storch
Author's email: 
newsroom@insidehighered.com

Joseph Storch is a lawyer in the State University of New York’s Office of University Counsel. In addition to campus representation, he concentrates his practice on the legal issues surrounding emerging technologies. The views expressed here are his own and do not necessarily represent the views of the State University of New York.

A System for Fighting Digital Defamation

Part I of this two-part series argued that it was inappropriate for colleges and universities to assume responsibility under in loco parentis for protecting college students from anonymous digital defamation, and that institutions should instead empower students by educating them on available strategies and resources.

In this essay, we discuss a disaggregated solution for addressing digital defamation and the resulting disaggregated harms it causes. By establishing a database-driven Web-based litigation system, we can empower students and level the playing field so that interested students can defend themselves, and hopefully deter future digital defamation.

The Digital Defamation Problem

Juicy Campus, the anonymous gossip site that closed its doors in 2009, and its replacements, such as College ACB and Campus Gossip, allow anyone with an Internet connection to post almost any content about a student, true or otherwise. The sites themselves do not necessarily target students. Instead, these sites become a clearinghouse for disaggregated, defamatory statements that cause emotional distress. The sites structure themselves by college and then by topic or victim, making it likely that the poster lives within a few miles of the victim.

Gossip may be posted freely and anonymously across these gossip sites, but it has actual victims and real costs. After reading degrading statements about themselves, victims often feel helpless, and some engage in, or consider engaging in, self-harming activities. Victims of cyber-sliming can fight back -- but for hundreds or thousands of dollars a month. Those with financial ability can hire Web services such as Reputation Defender (a service that, for a fee, minimizes the search ranking of negative postings about the client while boosting the search ranking of positive information) or specialist attorneys (who, for a fee, will investigate and file the necessary lawsuits to clear one’s reputation).

Lawsuits can be effective. Two years ago, two Yale students saw some success in identifying and pursuing those who smeared them on the Web site AutoAdmit. If they had not been represented by lawyers without charge, their partially successful pursuit would have come at significant cost. Recently, a model, represented by counsel, successfully sued Google in New York state court to reveal the identity of an anonymous blogger who called her a “skank” on a Google-hosted blog. With the blogger’s identity revealed, the model dropped her suit.

Yet many college students who fall victim to such anonymous defamation cannot afford high-priced reputation-clearing services or legal representation, and can fall victim to these brutal attacks with few options for fighting back. While the weapons for anonymously hurling invective across cyberspace have decreased in cost to where they are almost free, the solutions for, and protections from, defamation remain costly. To that end, we envision a system that allows victims of defamation to fight back, at a lower cost, with the hope that the market further lowers the costs of such protection to a level that deters anonymous cyber-sliming.

A Disaggregated Solution

Due to the disaggregated nature of anonymous defamatory attacks against students, even colleges who would welcome their role in loco parentis cannot take on these Web sites or their anonymous posters. Due to mirror sites and easy off-campus Internet access, blocking access to such sites is ineffective in the long term. Rather, the most effective and practical method is for colleges to educate students on how to protect themselves against digital defamation.

To that end, we propose a disaggregated digital solution to this disaggregated digital problem: a database-driven, Web-based litigation system that would allow students to file suit using fill-in-the-blank legal forms. When student affairs staff members are approached by student victims, in addition to offering counseling, they can direct the student to a system where the student can engage in self-help.

Establishing such a system will come at significant cost – a cost that can only be borne by a large organization possessing the funds to develop and host the site and the staff to keep it updated as laws and standards change, to provide technical support to student victims, and to ensure that it does not violate state rules against improper practice of law.

Possible candidates include the Anti-Defamation League, national student advocacy groups and national student affairs professionals groups. Other candidates include law school clinics whose students could design such a site and assist student victims in reclaiming their reputations. Likewise, for-profit private sector entrepreneurs may find an opportunity here.

The system’s goal is to educate students about the general laws of defamation, and guide them through the process of bringing a lawsuit in the proper court. While most lawsuits would be for false and libelous defamation, even true statements can sometimes be so vile that they qualify under certain state laws governing intentional or negligent infliction of emotional distress (I.I.E.D.).The beauty of a database-driven system is that it could equally provide for an I.I.E.D. claim in those states where such a claim is allowed.

Defamation suits must be brought in state court except in rare, complicated cases. Which state’s court is appropriate depends on several factors. Since most of these claims will result from postings in forums dedicated to the college or university that the victim attends, that state’s courts will likely assert jurisdiction over the matter.

Gossip sites like Juicy Campus or College ACB “do business” in any state in which they establish a forum for gossip at a college located there. Further, the publication would occur in that state (among others) while the victim, and most likely the harasser, live in the same state. Like all lawsuits, these suits will not succeed every time, and some courts may decline jurisdiction. But, for many students, the system will take them down a path toward discovering the identity of their harassers and pursuing legal remedies against them.

The System for Fighting Back

The first step a student must take after viewing a cruel gossip post is to analyze the content of the post -- honestly. Although something is hurtful, it might not qualify as defamation. Truth is not defamation. Additionally, laws typically require that the poster had to know, or reasonably should have known, that the post was false when he or she posted it. Further, the post must be a factual statement; opinions are usually fair game. The student must differentiate between “John Jones is a drug addict” (claim of fact) and “John Jones acts like a stoner” (opinion).

Admittedly, this is a difficult line to draw for Constitutional scholars, and it will not be easy for college students without assistance. A well-designed system could include a “wiki”-style guidance document where those who bring successful cases or bring significant knowledge of defamation law can help students determine if a statement meets the definition. As cases progress, sharper definitions of defamatory statements may emerge. If the student concludes that the comments are really opinions, but they are “extreme and outrageous” enough to cause severe distress, the student might still have a claim against the poster for I.I.E.D.

The second step for a student is to see if they can determine who the poster is. If so, the path is easier. If not, the system would present them with a fill-in-the-blank “John Doe” lawsuit and subpoena for the gossip site hosting the comments. Using a database, the system can offer different forms and filing options depending on the state. Some states allow electronic filing while others require printing and mailing.

Once the victim sends the subpoena to the gossip site, the third step for a student is to provide some notice to the poster. One way is to post the subpoena in the same forum used for the defamatory post. If the site cooperates and releases the Internet Protocol (I.P.) address for the offending poster, the next step is to use the Internet “Who Is” database to determine the poster’s Internet Service Provider (I.S.P.), and subpoena that I.S.P. for the poster’s identity. If the I.S.P. cooperates and identifies the poster, the victim can amend the suit’s defendant to name the poster.

Some Reasonable Criticisms

It should be noted that this system is neither perfect nor free from criticism. For every success, there will be failures: paperwork lost, I.P. addresses destroyed or not captured, deadlines missed, and sites and I.S.P.’s uncooperative. It may be that few cases go to trial. Many will die on the vine due to technical or substantive problems. The successful cases, however, may result in large judgments, especially in the cases of the most malicious and untrue gossip. These cases, even if rare, may provide a deterrent against future libel. The examples of a few bright students who declare bankruptcy, cannot buy a home or have their wages garnished to pay a defamation judgment may dissuade future harassers.

A prime criticism to this system is the position that the Internet is a bastion of free speech and nothing should stand in the way of unabashed free speech. Yet, defamation and speech intended to inflict severe emotional distress is not First Amendment protected speech. States can and do regulate this type of speech. We are not seeking a new regime that silences free speech on the Internet; rather we hope to apply the same standards to the Web that govern in the real world.

Another criticism is that this system will only work to the extent that Web sites capture I.P. addresses and submit to jurisdiction. Further, some posters will use anonymizing software or post from locations that do not capture I.P. addresses. This criticism is valid, and admittedly, the system will not work entirely for every student.

However, while some sites may choose not to capture I.P. addresses, sites may begin to receive so many of these subpoenas that they comply for the sake of cost-saving efficiency. Alternatively, Congress or trial judges may begin to find bad faith in quickly deleting I.P. addresses simply to shield malicious posters from the legal system, and the legal and legislative marketplace may, thus, correct that difficulty.

Additionally, this system will not necessarily work for non-student defamation victims. The system is aimed at college students, because these sites construct forums for individual schools. Thus, it is likely that the poster and victim live in the same state (if not the same residence hall). It will not necessarily work for those targeted from other states or countries and may not help victims of attacks on personal blogs.

Further, contrary to the successful cases discussed above, courts in some states have declined to force anonymous posters to reveal themselves. Concurrently, the system will not protect against statements that do not meet the technical legal definitions of defamation or I.I.E.D., but nevertheless impose significant harm on victims. Of course, even if the system works and some victims win massive judgments, these suits may induce no more deterrence among students than did the music industry’s lawsuits.

Such a system also presupposes that a victim is willing to go on the record in suing the poster. The requirement to file openly may discourage some victims. The Second and Ninth Circuits of the federal court system, as well as many state courts, allow anonymous filing of lawsuits when, among other things, the matter is very sensitive or personal, there is a possibility of retaliation for filing suit, the prejudice to the defendant is less than the harm of identification, and when the public interest is served by such anonymity. Such a standard could be used in these cases, even recognizing the irony of filing an anonymous suit to expose an anonymous poster. At the same time, courts must be vigilant at the dismissal stage, to protect against those who seek to use the system as a weapon by filing false claims.

Establishing such a system will be expensive and difficult. It cannot be accomplished without the support of a large organization and volunteer attorneys or law students. Defamation cases are complicated and based on differing state laws. The same could be said about the thousands of pages of federal and state tax codes. Yet, companies like TurboTax and H&R Block offer database-driven Web services that allow most taxpayers to quickly and accurately file federal and state returns without ever opening the tax code.

Reclaiming a Reputation

We recognize that establishing such a system will not be an easy sell. Even considering the above, and other valid criticism, we believe that our system will empower the many student victims who have no method of fighting back against anonymous posters. It will not be perfect, yet we cannot let the perfect be the enemy of the good. Colleges and universities can educate students on ways to employ this and other disaggregated solutions; encouraging the development of this system and educating students on its use can be part of that mission.

The attractiveness of such a system is that it would help student victims help themselves. The individualistic nature of the Internet, where amateur journalists pen millions of blogs while Wikipedia entries outnumber traditional encyclopedia articles many-fold, is not well-served by a super-regulator censoring content to protect defamation victims.

Colleges cannot protect students from all of the dangers imposed by the Internet. Rather, student victims need an inexpensive, user-friendly tool to level the playing field. Developing and marketing such a system will grant victims a much-needed gift: the opportunity to take back their reputations and return to living their lives.

Author/s: 
Benjamin Bleiberg and Joseph Storch
Author's email: 
info@insidehighered.com

Benjamin Bleiberg is a judicial clerk in the United States District Court of the Eastern District of Pennsylvania. Joseph Storch is an attorney in the State University of New York’s Office of University Counsel. In addition to campus representation, he concentrates his practice on the legal issues surrounding emerging technologies. The views expressed here are their own and do not represent the views of the State University of New York or the federal court system.

Anti-Bias Rules for Everyone

The case of Christian Legal Society v. Martinez, which will be argued before the Supreme Court today, is one of the most important debates about student rights at public colleges. The Christian Legal Society (CLS) is suing the University of California's Hastings College of Law because the group claims a religious exemption from the college's nondiscrimination rules.

At first glance, it may seem appealing to allow religious student groups to set religious rules for their leaders. But the practical effect of embracing religious oaths for student groups is a violation of individual rights, an attack on student democracy, and a potential increase in administrative power.

This dispute has its roots in the mid-1990s, when fundamentalist groups such as CLS sought to expand their influence on college campuses but feared that Christian students were becoming too tolerant of homosexuality. In 2004, CLS compelled all of its student chapters to adopt a strict Statement of Faith and standards of sexual morality for leaders, which led to the current litigation.

The First Amendment's rights to free association and free expression are paramount in particular at an institution of higher education. However, the Supreme Court has never ruled that student groups at public colleges must be given special rights due to their religious orthodoxy, and can ignore the universal rules applied to all student groups in a viewpoint-neutral manner.

Religious groups must have the freedom to express their views, even repulsive ones like homophobia. No one at Hastings ever tried to punish anyone for being in the CLS, or barred them from promoting their views. But when the society and other fundamentalist groups demand that universities violate antidiscrimination policies and the individual First Amendment rights of their students to accommodate this bigotry, they go too far.

Who Becomes the Enforcer?

Investigating the religious beliefs, moral values, and sexual activities of students is not something that any university should be doing. But if student groups are allowed to impose ideological oaths and religious tests for membership or leadership, universities are placed in impossible situations where such inquiries will be made in their names.

The CLS defenders, which include a vast group of 22 amici briefs and 14 state attorneys general, are wrong when they cite the Supreme Court precedents for a “right to exclude.” These cases, such as Boy Scouts of America v. Dale, deal exclusively with private organizations, a term that cannot apply to student groups at public colleges, which operate under the umbrella of public colleges -- receiving their funds and using their facilities.

This legal status is important because it means that there is no entity other than the administration that can adjudicate disputes over the meaning of a student group's bylaws. This ownership issue creates a fatal flaw in the CLS argument. Suppose the Supreme Court decides in favor of CLS and it receives recognition at your public college, and then it tries to kick out a member for being gay. Now think about what would occur if that student denies being gay. Do you want a public college – or a student organization acting in the college's name -- deciding whether a student is gay or not? Or whether he is a good Christian?

It is noteworthy that the plaintiffs' brief and the 22 briefs supporting it omit any discussion of exactly who shall be given the power to interpret and enforce the bylaws they deem essential to the existence of CLS at Hastings. But in such scenarios, student organizations or, in an extreme case, a college itself would be making such decisions.

The danger is even greater in this case because of the strict restrictions demanded by CLS. In order to be officers or voting members of CLS, students must sign the national CLS Statement of Faith: “Trusting in Jesus Christ as my Savior, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit. God the Father Almighty, Maker of heaven and earth. The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return. The presence and power of the Holy Spirit in the work of regeneration. The Bible as the inspired Word of God.” Virtually all of these statements present interpretative challenges. Does defining God as “maker of heaven and earth” require a belief in creationism over evolution? What does it mean to say that the Bible is “the inspired Word of God”?

But the Statement of Faith is not the only requirement for CLS leaders. The bylaws require that “Officers must exemplify the highest standards of morality as set forth in Scripture” in order “that their profession of Christian faith is credible” and must abstain from “ 'acts of the sinful nature,’ including those in Galatians 5:19-21; Exodus 20; Matthew 15:19; Romans 1:27; 1 Corinthians 6:9-10.” Envy, rage, hatred, jealousy, selfish ambitions, discord, dissensions, factions, drunkenness, greed, coveting, slander, evil thoughts, and violating the Sabbath are all prohibited by these Biblical passages.

Imagine for a minute that the CLS believes that a member was violating the statement by believing in witchcraft. She denies it. Could CLS demand that Hastings hold a witchcraft hearing?

Imagine if the leaders of a Christian Legal Society are irritating administrators with public protests against abortion rights. These administrators could retaliate by removing the student leaders for violating their own statement of faith, by accusing them of being “angry,” which is contrary to the CLS bylaws. It would be simple to accuse the leaders of some religious heresy, put them through an ideological trial, arbitrarily decree them guilty, and then remove them. So allowing religious tests in the bylaws of student groups actually increases the threat of administrative abuse because it gives the administration the power to determine the leadership of student groups. Administrators at public colleges will certainly try not to get involved in theological debates, but individual students could file complaints that CLS leaders have felt envy or violated the Sabbath, and demand that administrators (or courts) remove them from office.

Hostile Takeovers

CLS and its supporters argues that the university’s rules could force it to accept members who disagree with its mission. However, that’s essential in order to protect every student group.

It may seem strange, at first, to say that an organization might be compelled to accept leaders who appear to contradict its goals. But the phrase “compelled to accept” is inaccurate. The real meaning of an “all-comers” policy is that students are “free to elect.” No student organization at Hastings is compelled by the administration to accept anyone as their leader, because the administration does not pick the leaders. The members of expressive organizations are completely free to make belief-based choices in choosing their leaders.

The CLS brief claims that under an “all-comers” policy, “it would make it impossible to have … a vegetarian club (whose menus could be voted upon by carnivores)…” A vegetarian club can exist with carnivore members, and it should not ban meat-eaters in its bylaws. If it did, exactly what would that mean? Would a person who accidentally ingested meat be banned from the group? Can you eat a steak dinner every week but repent before dessert and become a vegetarian again? Could a vegan proclaim that non-vegan vegetarians are actually meat-eaters? Of course, these are all legitimate arguments for a vegetarian club to undertake when electing its leaders. However, by creating a constitutional ban on meat-eaters in its bylaws that overrules the democratic will of its members, the vegetarian club would require the administration (presumably a bunch of carnivores) to make the decisions about the core meaning of vegetarianism, decisions that instead should be made by the student members.

What CLS demands in this case is that administrators overrule student decisions about selecting their leaders. According to the Petitioners, “CLS is vulnerable to sabotage or takeover by a relative handful of hostile fellow students, who need only show up at a meeting en masse and exercise their rights to join and vote.”(Petitioner's Brief at 33) But hostile takeovers of student organizations are extraordinarily rare on public college campuses. There is not a single recorded case in American history where a roving gang of campus atheists have taken over a religious student group. The plaintiff's brief and all 22 briefs of amici curiae supporting the plaintiffs combined identify only two allegations of a campus group hijacking. In a 1993 case at the University of Nebraska, the College Republicans attempted to take over the Young Democrats, but there is no evidence in the record that they were successful. In a 2007 incident at Central Michigan University, a student on a Facebook page suggested (but apparently never took any action toward) a hostile takeover of a student organization.

The Supreme Court must not impose a remedy for a problem that, according to the written record of this case, does not appear to exist.

The nondiscrimination rules required by Hastings do not limit the Constitutional rights of CLS students. These rules protect the rights of these students by allowing members to select their leaders without interference from national organizations.

The demands of CLS run the risk of creating enormous governmental intervention and control over the religious views of students, a power that Hastings does not wish to have, and a power that it cannot constitutionally exercise. If the administrators of a public college evaluate the religious views of students and make theological decisions, they would be guilty of violating the long-established separation of church and state as well as the freedom of religious expression of students. For a public university to enforce the demands of external religious groups to restrict the rights of conscience of individual students is a clear violation of the First Amendment.

Author/s: 
John K. Wilson
Author's email: 
info@insidehighered.com

John K. Wilson is the founder of CollegeFreedom.org and the author of Patriotic Correctness: Academic Freedom and Its Enemies(Paradigm Publishers, 2008).

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