Supreme Court Potpourri: Free Speech and Sex Harassment

October 2, 2007

On the first day of its new term each year, the U.S. Supreme Court typically agrees to hear a handful of cases but declines to consider hundreds more. Monday, the justices turned aside several cases with implications for higher education, letting stand appeals court rulings that, among other things upheld the right of a public university to limit an uninvited preacher's ability to speak on its campus, and required a high-profile women's soccer coach to stand trial in a lawsuit that accuses him of harassing (often lewdly) former players -- and blames his employer, the University of North Carolina at Chapel Hill, for doing too little to halt the alleged harassment. The court also largely rejected a challenge to the U.S. Education Department's method of enforcing federal sex discrimination law in college athletics.

The cases were among scores on which the Supreme Court acted on the traditional first Monday in October, the opening day of its annual term. By refusing to hear a case, the high court lets stand the result of the last decision by a federal appeals court or, less typically, a state supreme court. Petitions to the Supreme Court are rarely granted, so those filing them tend to view them as a last-ditch effort, with relatively little chance of success.

But lawyers for James G. Gilles -- often known as Brother Jim -- had more than the usual reason to hope that the justices might agree to hear their challenge to Vincennes University's policies on campus speech. The popular Web site SCOTUSBlog had identified the case known as Gilles v. Blanchard as one of three "petitions to watch" in the court's initial set of decisions about which cases to hear, giving Nate Kellum, a lawyer for the Alliance Defense Fund, which represents Gilles, a "modest degree of confidence" that the preacher's appeal would be granted.

Gilles had argued that in barring Gilles's attempt to discuss “faith and other moral issues of the day” in a seemingly public place on the campus of the Indiana public university (requesting instead that he apply to appear in an area of the campus designated for "solicitation"), Vincennes had violated his First Amendment right to speak in what his lawyers deemed a "public forum." Kellum said that last February's decision by the U.S. Court of Appeals for the Seventh Circuit clashed with previous decisions in other federal circuits, another fact that can encourage the Supreme Court to decide to hear a particular challenge.

But in rejecting Gilles's appeal Monday without comment, as is the court's custom, the justices seemingly endorsed the views expressed by the Seventh Circuit's ruling, which held that the university was within its rights to limit speech in non-public areas of its campus, and to limit speech on the lawn where Gilles sought to speak only to members of the campus community.

"The issue more simply posed is whether a university should be able to bar uninvited speakers under a policy that by decentralizing the invitation process assures nondiscrimination, and a reasonable diversity of viewpoints consistent with the university’s autonomy and right of self-governance," Judge Richard A. Posner wrote for the three-judge panel. "We have tried to explain why the Constitution does not commit a university that allows a faculty member or student group to invite a professor of theology to give a talk on campus also to invite Brother Jim and anyone else who would like to use, however worthily, the university’s facilities as his soapbox. To call the library lawn therefore a 'limited designated public forum' is an unnecessary flourish."

Duane Chattin, director of public information at Vincennes, said Monday that the university was "pleased that the litigation has ended." The university, he said, "has believed all along that its regulations provided for the free expression of speech on campus, and certainly never intended to hamper the exercise of free speech. The Supreme Court's ruling on this bears that out."

Gilles has another roughly similar case pending before the U.S. Court of Appeals for the Sixth Circuit, involving an unsuccessful attempt to speak at Murray State University.

In the other noteworthy case the Supreme Court dispatched Monday, it declined to hear an appeal by Anson Dorrance and the University of North Carolina of last April's decision in which the U.S. Court of Appeals for the Fourth Circuit ordered them to stand trial on charges that the women's soccer coach harassed and sexually discriminated against a former player and that the university and its officials failed to put a stop to his behavior.

The case is nearly a decade old and has had a tangled legal history. But the gist of it is that with the Supreme Court's action Monday, Dorrance, a former national team coach and among the best known coaches of women's collegiate sports, will now be forced to stand trial on a former player's charges that created a sexually hostile environment through repeated sexual banter, and university officials must defend themselves against charges that they engaged in "deliberate indifference" to the discrimination that Dorrance had allegedly created. The appeals court said the plaintiff had provided sufficient evidence of those accusations to warrant a trial on the merits, rejecting the university's request to have the case dismissed.

In a statement Monday, North Carolina officials played down the significance of the Supreme Court's decision, saying it was "not unexpected" because it is "exceedingly rare for the nation’s highest court to intervene in that way." Mike McFarland, director of university communications, added: "The university continues to dispute the plaintiff’s version of the facts in this case.”

In another action related to higher education Monday, the Supreme Court let stand a September 2006 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that overwhelmingly rejected efforts by advocates for men's sports to challenge the U.S. Education Department's enforcement of Title IX of the Education Amendments of 1972. The appeals panel's decision did give the College Sports Council and the National Wrestling Coaches Association a shot at challenging the department’s 2003 refusal to begin a negotiated rule making process to examine its interpretation of the federal law barring sex discrimination, ordering a lower court to review that decision.

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