Federal Appeals Court Slams University Speech Policies

A three-judge federal appeals court ruled unanimously Thursday that two speech policies at the University of Central Florida likely violate the First Amendment. While the ruling is not a final decision about the case, it grants an injunction to bar the university from using the policies and strongly condemns them.

“Given the discriminatory-harassment policy’s astonishing breadth—and slipperiness—we think it clear that a reasonable student could fear that his speech would get him crossways with the university, and that he’d be better off just keeping his mouth shut,” wrote Judge Kevin C. Newsom in the decision. “That sort of ‘objective chill’ suffices to give the affected students … standing.”

The suit was brought by Speech First, a conservative group that in addition to opposing many speech codes also opposes spending by colleges on diversity and on critical race theory.

The policies the suit attacked are on “discriminatory harassment” and on “bias-related incidents.”

The first policy bars “discriminatory harassment [that] consists of verbal, physical, electronic or other conduct based upon an individual’s race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex (including pregnancy and parental status, gender identity or expression, or sexual orientation), marital status, physical or mental disability (including learning disabilities, intellectual disabilities, and past or present history of mental illness), political affiliations [and] veteran’s status.”

The policy covers “verbal acts, name-calling, graphic or written statements (via the use of cell phones or the Internet), or other conduct that may be humiliating or physically threatening.” The policy applies to “discriminatory harassment that is so severe or pervasive that it unreasonably interferes with, limits, deprives, or alters the terms or conditions of education (e.g., admission, academic standing, grades, assignment); employment (e.g., hiring, advancement, assignment); or participation in a university program.”

In evaluating whether someone has violated the policy, the university uses the “totality of known circumstances,” including:

• The frequency, nature and severity of the conduct.
• Whether the conduct was physically threatening.
• The effect of the conduct on the complainant’s mental or emotional state.
• Whether the conduct was directed at more than one person.
• Whether the conduct arose in the context of other discriminatory conduct or other misconduct.
• Whether the conduct unreasonably interfered with the complainant’s educational or work performance and/or university programs or activities.
• Whether the conduct implicates concerns related to academic freedom or protected speech.

In addition, the Student Handbook at the university states that “students are prohibited” not only from engaging in the prohibited conduct themselves but also from “condoning or encouraging acts of harmful behavior as defined [in the discriminatory-harassment policy] or failing to intervene during an act of harmful behavior while it is occurring.”

A “bias-related incident” is “any behavior or action directed towards an individual or group based upon actual or perceived identity characteristics or background. This bias motivates an individual to act in an offensive manner towards an individual or group including but not limited to: race, sex (including gender identity/expression), color, religion, ancestry, national origin, age, disability, veteran status, military status, or sexual orientation. Such acts may result in creating a hostile environment and may have a negative psychological, emotional, or physical impact on an individual, group, and/or community.”

An incident need “not necessarily rise to the level of a crime, a violation of state law, university policy, or the student code of conduct.” Rather, a “bias act” is one that “may contribute to creating an unsafe, negative, unwelcoming environment [for] the victim, or anyone who shares the same social identity as the victim, and/or community members at the university.”

What the Decision Said

First the decision had to address the question of whether Speech First had a right to sue. The court found that it did, noting that it has members at the university who have indicated their speech is limited.

Said the decision: “One student, for instance—identified as ‘Student A’ in Speech First’s complaint—says that he wishes to express his views that ‘abortion is immoral,’ that the government ‘should not be able to force religious organizations to recognize marriages with which they disagree,’ that ‘affirmative action is deeply unfair,’ that ‘a man cannot become a woman because he “feels” like one,’ and that ‘illegal immigration is dangerous.’ He asserts that he desires to ‘speak passionately’ about those (and other) topics, that he wishes to ‘engage in open and robust intellectual debate’ about them … Finally, he says that he ‘does not fully express himself or talk about certain issues because he fears’ that sharing his beliefs may subject him to the university’s discriminatory-harassment policy, bias-related incidents policy, or both.”

The decision said the language in the policy made it too broad and unconstitutional.

“The discriminatory-harassment policy’s imprecision exacerbates its chilling effect,” the decision said. “To take just one example, what does it mean for one student’s speech to ‘unreasonably … alter’ another student’s educational experience? Both terms—‘unreasonably’ and ‘alter’—are pretty amorphous, their application would likely vary from one student to another … To be clear, these concerns aren’t speculative. At oral argument, we asked the university’s lawyer a series of questions about whether particular statements would violate the discriminatory-harassment policy: (1) ‘abortion is immoral’; (2) ‘unbridled open immigration is a danger to America on a variety of levels;’ and (3) ‘the Palestinian movement is anti-Semitic.’3 To his considerable credit—but to the policy’s considerable discredit—he candidly acknowledged that while ‘it d[id] not sound to [him]’ like the speech would be proscribed under the policy, he couldn’t say for sure because ‘the university will consider all the facts and circumstances there’ and because he couldn’t ‘prejudge everything.’ … If UCF’s own attorney—as one intimately familiar with the university’s speech policies—can’t tell whether a particular statement would violate the policy, it seems eminently fair to conclude that the school’s students can’t either.”

The decision added, “the policy applies to a non-exhaustive laundry list of behaviors—including, among others, ‘graffiti [and] signs,’ ‘confrontation’ and ‘gestures.’ Pair that broad, vague, and accusatory language with the task-force-ish name of the investigating organization—the Just Knights Response Team—and we think it clear that the average college student would be intimidated, and quite possibly silenced, by the policy.”

Adding on that issue, the decision said, “The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards.”

The judges did not try to hide their strong feelings about the case. Judge Stanley Marcus ended his short concurring opinion with these words: “A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum.”

Reacting to the Decision

The university issued a statement Friday that said administrators were reviewing the decision. “We wholeheartedly agree universities should be a place for civil discourse and the free exchange of ideas. We remain fully committed to encouraging differing viewpoints, free speech and free expression—and we recommit to ensuring our policies are consistent with those ideals. The university continues to work to ensure the related policies are reviewed and are consistent with our commitment.”

Cherise Trump, executive director of Speech First, issued this statement: “This is a huge victory for every student at the University of Central Florida, as well as all students attending schools in Florida, Georgia, and Alabama. We are thrilled that the court sided with us as we work to protect students’ First Amendment rights. This court decision should send an alarming message to anyone attempting to chill, silence, or bully into submission others’ opinions. Open dialogue and an exchange of ideas are how leaders are formed, censoring students will only stunt their ability to grow intellectually and contribute to society.”