Court rulings

The 'No Viewpoint' Viewpoint

Imagine a college student returning to campus next fall and being greeted by a student government representative who asks her if she is devoutly religious or not. She answers “yes” and the representative responds, “I am sorry, the student government has decided that the separation of church and state means that, as state college, we have to be free of religious students. You may want to consider a religious college.” Next imagine this befuddled student taking her complaint to the president of the college and he says “Yes, I know the student government’s interpretation of the Establishment Clause is wrong and utterly violates the U.S. Constitution, but I don’t want to interfere with their autonomy.  Besides this is a ‘teachable moment.’ If they eventually get this ‘no religious students on campus’ decision in front of me, however, I will veto it. In the meantime, have you considered a religious college?”

While I have seen abuses of the Establishment Clause almost as ridiculous as this in my career, I use the above example to illustrate the absurdity of a public college delegating students’ constitutional rights to the student government. In cases across the country, however, administrations have stood idly by while student governments pass rules and make decisions that flatly violate the Constitution. One recent case that demonstrates this phenomenon involves the University of Wisconsin at Eau Claire, where the student government passed a rule in March banning groups with a "particular ideological, religious, or partisan viewpoint" from receiving student-fee funding. 

This may not seem like a particularly big deal to some. What the students and many observers don’t seem to understand is that profound moral and constitutional principles are violated by this rule.
 
The case no one seems to have adequately explained to these students is the 2000 U.S. Supreme Court case Board of Regents v. Southworth. In that case a group of students (also at the University of Wisconsin, in that case at Madison) objected to the mandatory student fee because much of the money -- money they were forced to pay in addition to their tuition -- went to support groups they fundamentally disagreed with. This is a serious civil liberties concern. As bad as it may be to tell citizens what they can’t say, it is far worse to tell them what they must say, and perhaps worse still to tell them they must directly fund groups that they fundamentally oppose. Why, for example, should pro-life students be forced to give money to pro-choice student groups, or gay students be forced to give money to groups that believe homosexuality is sinful?
 
The Supreme Court in Southworth, however, did not see this as forced support of other’s opinions as long as certain conditions were met. In this unanimous decision, Justice Kennedy argued that, while people should not be forced to directly subsidize speech they despise, the student-fee system was more akin to a subsidy of free speech for all students in general -- as long as the collected funds were distributed without regard to the viewpoint of the student groups. The decision was a kind of constitutional compromise: public colleges may collect mandatory student fees if, and only if, student groups of every opinion (or no opinion at all) could apply for funds on an equal basis. While colleges would have every right to set up “viewpoint-neutral” criteria for funding, like requiring a certain number of students to be a members before being recognized or only funding on-campus events, the fact that students or administrators did not like the message of particular student group could not be used to deny a group funding from the mandatory student-fee pool.
 
Other options are also open to public colleges under Southworth. Public colleges can, for example, eliminate student fee funding altogether, or they can designate its use for narrow content-neutral categories, like designating fees exclusively for intramural sports, or monthly social events. The analysis gets trickier if a college with mandatory student fees banned groups with formal ties to outside political groups like the College Republicans or the College Green Party.

In order to stand a chance of surviving a Southworth challenge, the college would likely have to ban funding for all groups associated with outside organizations (a tricky and difficult standard to administer, that would doubtless prevent many students from forming the groups they would prefer to form) but even doing that would not rule out the chance of a lawsuit. Anytime administrations, and, in particular, student governments are empowered to take the content of a group into consideration the possibility of such a standard being used against groups with unpopular viewpoints (and, thereby, violating Southworth) presents itself.

Unfortunately Southworth’s requirement of “viewpoint neutrality” is often badly misunderstood and the Eau Claire student government has turned the concept completely on its head. Over the past year the student government and some members of the student media have interpreted "viewpoint neutrality" as meaning that they could not fund student groups that had any particular viewpoint or "bias." As part of growing trend coming from both the left and the right to route out "bias" on campus, a ranking student representative was even quoted in Eau Claire’s student newspaper as saying, "We want to exclude any groups that would be religious in nature, political in nature or anything that would have a political agenda [from being funded through student segregated fees]."

This statement directly contradicts numerous binding Supreme Court cases, including Southworth and Rosenberger v. Rector & Visitors of the University of Virginia, and flatly discriminates against both religious and secular viewpoints. Why didn’t the administration offer some guidance to the students? After all, the student government was publicly contemplating passing a rule that violated the U.S. Constitution for months.

The Foundation for Individual Rights in Education wanted to know why the administration was allowing their students to flounder and then flout the Constitution so blatantly, so it wrote the president and the upper administration. In an April 6 letter, FIRE emphasized a point that should be clear to any high school civics class: "As a state institution, the university and its administrators should understand that UWEC has a non-delegable duty to ensure that the First Amendment rights of its students are protected, and that no federal, state, local, or university rule, policy, or regulation can trump the exercise of rights guaranteed by the United States Constitution ." FIRE received a belated reply from the general counsel that allegedly the policy was “not yet in effect” and was pending review by her office, which would guide the university to deal with the policy in compliance with Southworth .
 
While this gives some hope that the rule will eventually be overturned, during the previous fall the student government refused to recognize a student magazine called The Flip Side because of its "progressive bias." The new, highly unconstitutional, regulation passed on March 14, 2005. The students have been laboring under the viewpoint that strong points of view are bad for months now. What exactly is the administration waiting for?

In previous situations where student governments have attempted to limit the free speech rights of other students, like University of Oregon where the student government stripped a student magazine’s recognition for poking fun at a transgender student representative who asked to be referred to as “zi” or “hir” rather than gendered pronouns like “he” or “her,” administrators essentially argued that that they did not want to interfere with the autonomy of the student government. While respect for the democratic process is commendable under some circumstances, one of the basics of our democracy is that there are some rights we deem too important to vote away. That is the reason why we have a Bill of Rights. The importance of the autonomy of the Eau Claire student government does not exactly match in importance the protection of free speech principles.

Some of the students seem to genuinely misunderstand the law here, and due to this misunderstanding they are violating the U.S. Constitution.  As soon as administrators found out about this debate they should have informed the students that their interpretation of “viewpoint neutrality” was not just wrong but unlawful. Instead they have allowed student groups and the student government to fight it out among themselves with no apparent effort by the administration to defend the groups that were faced with these unconstitutional criteria.
 
Meanwhile students write editorials interpreting Southworth to mean "student fees could only be used to fund content-neutral organizations." If this is one of those "teachable moments" that educators talk so much about, it has failed. It is time the Eau Claire administration — and other universities where student harbor similar misunderstandings — do their job and teach their students what "viewpoint neutrality" really means.
 

Author/s: 
Greg Lukianoff
Author's email: 
info@insidehighered.com

Greg Lukianoff is director of legal and public advocacy for the Foundation for Individual Rights in Education.

The Case of the Censored Newspaper

In what may be the worst decision for college student rights in the history of the federal judiciary, the U.S. Court of Appeals for the Seventh Circuit this week turned back the clock a half-century and reinstated the old discredited doctrines of in loco parentis and administrative authoritarianism.

In Hosty v. Carter, the Seventh Circuit ruled by a 7-4 majority that administrators at public colleges have total control over subsidized student newspapers. But the scope of the decision is breathtaking, since the reasoning of the case applies to any student organization receiving student fees. Student newspapers, speakers and even campus protests could now be subject to the whim of administrative approval.

The case seemed like an open-and-shut example of unconstitutional suppression of dissent. On November 1, 2000, Patricia A. Carter, dean of student affairs at Governors State University, in Chicago’s south suburbs, called the printer of the student newspaper, the Innovator, and demanded prior approval of everything in the paper, which had annoyed administrators with its criticism of the university. Prior restraint is a classic violation of freedom of the press, and the editors Jeni Porche and Margaret Hosty soon sued the university.

Student press groups were alarmed when the Illinois attorney general’s office argued that the 1988 U.S. Supreme Court case Hazelwood School District v. Kuhlmeier should apply to college newspapers. The misguided Hazelwood decision has been an unmitigated disaster for high school journalists, and the possibility of extending it to college students is terrifying.

Terrifying, that is, for anyone who cares about freedom of the student press. But for the majority of the Seventh Circuit, Hazelwood was a legal opening for conservative judges who wanted to reach a predetermined result. If the majority opinion by Judge Frank Easterbrook had merely extended the censorship of Hazelwood to colleges, it would have been a principled decision; a terrible principle, but a principle nonetheless.

However, because Dean Carter’s action violated even the Hazelwood standard, these activist judges had to rewrite the Hazelwood precedent to justify the censorship of all student newspapers and activities. The judges had to eliminate Hazelwood’s restriction to curricular-based newspapers, and then had to eviscerate any constitutional protections for a “limited public forum” such as a newspaper. It took the judges 18 months from the time of oral arguments, and some convoluted reasoning, to achieve their goal.

The Hazelwood case declared that high schools could only censor student newspapers that were created as part of the curriculum. However, the majority decision in Hosty goes far beyond this, expanding censorship of high school papers as well by eliminating the “curricular” limit.

Jettisoning the Hazelwood standard restricting only curricular-based newspapers was merely the first of Easterbrook’s violations of precedent. He also annihilates the common understanding of “limited public forum,” a term created by the Supreme Court to provide a middle ground between the unregulated public forum (such as standing on a soapbox on the quad) and a non-public forum (such as a university-controlled alumni magazine).

“If the paper operated in a public forum, the university could not vet its contents,” Easterbrook wrote. He then asked, “was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)?” Of course, a newspaper isn’t a public forum like a soapbox. It’s limited to the students who run the newspaper. By declaring that only a pure public forum is entitled to Constitutional protection, Easterbrook eliminates the First Amendment on college campuses for any limited public forum, including any student-funded activities.

“What, then, was the status of the Innovator?” Easterbrook continued. “Did the university establish a public forum? Or did it hedge the funding with controls that left the university itself as the newspaper’s publisher?” By his logic, the only speakers or newspapers on a public college campus that fall under public forum protection would be those that receive no funding from student fees or university funds (a rare commodity indeed). Any funding “controls” are directly tied to ideological controls. 

Easterbrook concluded, “Freedom of speech does not imply that someone else must pay.” This is the philosophy of “he who pays the piper calls the tune,” and the Supreme Court has rejected it over and over again at public colleges.

Easterbrook is claiming that if the university can require student groups to follow funding rules designed to prevent fraud (and demand that student fee money be spent on a newspaper rather than, say, a private party), then the administration must be granted total control over the content of the newspaper.

A Break With Precedent

This is a bizarre conclusion, considering that the Supreme Court has repeatedly banned such control by colleges in funding cases.

In Rosenberger v. University of Virginia, the Court ruled that a public university cannot ban funding for a newspaper based on its religious content. Now the Seventh Circuit has declared that a public university may be obliged to fund a religious newspaper, but it can impose any control over its contents. In Board of Regents of the University of Wisconsin v. Southworth, the Supreme Court ruled that public colleges must ban all viewpoint discrimination in funding student groups. It would be bizarre if college administrators were granted the direct power to control the viewpoints expressed in student newspapers, while by expressly banned from making funding decisions based on viewpoint. Yet this is what Easterbrook’s opinion permits.

Any non-public forum that is funded by the university to any degree could be controlled and censored by administrators. Any use of campus space by a student organization is subsidized by the university, as are all registered student groups that receive any benefits or funding. Therefore, all of these groups are subject to total control by the administration under Easterbrook’s ruling.

In essence, Easterbrook argued that there is only one kind of censorship that is impermissible on a public college campus: banning someone from speaking for free on a soapbox on the quad. In all other cases, under the Hosty v. Carter ruling, college administrators across the country now have a green light to ban anything they want, from controversial campus speakers to critical student newspapers.

Although the Hosty ruling itself only applies to Illinois, Indiana and Wisconsin, the states covered by the Seventh Circuit, the “qualified immunity” test allows any public college administrators to avoid damages in any case where the law is unclear -- and the Hosty case certainly makes freedom of the student press an unclear idea.

The Hosty decision could also affect faculty academic freedom. If college students have no more Constitutional protections than first graders do, then college professors may have no more rights than elementary school teachers. Decades of cases establishing the unique legal status of colleges and academic freedom, based on the maturity and rights of college students, might be wiped away if Hosty is upheld.

Easterbrook also hauled out the dubious idea of institutional academic freedom: “Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts.” If “academic freedom” means only the power of administrators to “manage an academic community,” then students and professors alike will be subject to censorship by the administration.

The Innovator has been shut down for almost five years, replaced by the administration with a more pliable newspaper where students never investigate or criticize their college. Unless the Supreme Court reverses the Seventh Circuit’s unprecedented act of conservative judicial activism, the Innovator may only be the first among many newspapers and student organizations silenced by administrators at public colleges, with the blessing of the courts.

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

Tripping Up on the Paperwork

A federal appeals court’s recent decision demonstrates how even an eminent jurist can be confused by the complex regulatory system established by the Higher Education Act, with potentially significant negative consequences for colleges and universities.

In United States ex rel. Main v. Oakland City University, Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit authored an opinion for a three-judge panel that reversed a District Court decision and permitted a qui tam action to proceed under the False Claims Act. In that action, a former director of admissions for a university contended that the institution had violated the prohibition in the HEA and the U.S. Department of Education’s implementing regulations against paying incentives for enrolling students. 

The False Claims Act is aimed at obtaining restitution to the government of money taken from it by fraud, and liability under that Act occurs when someone presents to the government a false or fraudulent claim for payment. In a qui tam action, a private individual -- the “relator” -- files a lawsuit seeking this restitution. The government may decide to take over the case, and the relator may obtain a financial reward if the action is successful. 

Qui tam cases are a mixed bag. On the one hand, the government obtains the assistance of private individuals to extend its investigative and litigation resources to protect the integrity of government programs. On the other hand, given the vast array of federal programs and the volumes of requirements that result from them, qui tam actions offer fertile ground for trial lawyers seeking a supply of new business and a potent weapon to force settlements from organizations that participate in government programs. The key, of course, is for the courts to scrutinize these actions carefully and to circumscribe them to achieve the purposes of the False Claims Act.

This is what Judge Easterbrook’s opinion failed to do. His failure is all the more surprising in light of his reputation not only as a highly capable jurist, but as a conservative one presumably skeptical of broad constructions of federal law that fuel the  litigiousness of the plaintiffs’ bar.

Fundamentally, Judge Easterbrook’s opinion simply got wrong crucial aspects of the regulatory structure established by the HEA. The opinion failed to understand the distinction between eligibility and participation in the student aid programs.

An institution establishes its eligibility under the HEA by filing an application with the Department of Education. However, an institution need not actually seek participation in the HEA student aid programs in this application. It may simply wish to be designated as eligible to participate because that status has significance apart from gaining access to the financial aid funding available to its students under Title IV of the HEA. 

Furthermore, the application does not require the institution to certify its compliance with all HEA requirements. The eligibility requirements are more limited and, as pertinent to the Oakland City case, nowhere include any certification by a college that it complies with the incentive compensation prohibition.

Only when an institution seeks to be certified to participate in the student aid programs does it agree to comply with the many participation requirements applicable to those programs. It does so by signing the Program Participation Agreement (PPA), which does include a representation that it will not violate the incentive compensation prohibition. Even then, however, the institution has made no actual claim for federal funds. That may occur only when it helps students apply for Title IV loans and grants. 

Judge Easterbrook dismissed this structure as “paperwork,” and this led him into error. Thus, early in the opinion, he stated that the university had assured the Department of Education in its eligibility application -- what he calls the “phase one application” -- that it would comply with the rule against incentive compensation. But, as noted above, that is simply wrong -- a college does not agree to comply with the incentive compensation rules until it formally seeks certification to participate in the program.

Easterbrook then went on more critically to state that the “phase two” application -- presumably the PPA and subsequent student applications for Title IV funds -- depended on the finding that the university was eligible and that the university could not be eligible if it knowingly violated the incentive compensation rule. 

That too is wrong. The Department of Education has the discretion to use a variety of remedies in the event that it believes an institution violated a participation requirement like the incentive compensation rule. These include placing an institution on the reimbursement method of receiving Title IV funds, or requiring repayment of funds, fines, and provisional certification. To be sure, the department may also seek to revoke the institution’s eligibility, but it is not compelled to do so. In contrast, the department must revoke eligibility if a true statutory condition of eligibility is no longer met, such as accreditation by a recognized accrediting agency or state licensure. 

Yet, Judge Easterbrook stated that “[i]f a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among the layers of paperwork.” This conflation of the requirements in a complex regulatory structure like the HEA can only fuel False Claims Act qui tam litigation, since now, based on Judge Easterbrook’s erroneous understanding of how the HEA works, any alleged violation can serve as the basis for relators and, more realistically, their enterprising counsel to sue.  

By failing to grasp the distinction between eligibility and participation, his opinion, on behalf of one of the leading federal Courts of Appeals, may dramatically increase the vulnerability of institutions of higher education to a whole new species of lawsuits: False Claims Act qui tam actions alleging knowing violations of one of the myriad requirements in the HEA and implementing regulations. The danger of such litigation will be heightened by the threat of treble damages under the False Claims Act.

It was precisely this danger that another federal court recognized in a qui tam case involving the same incentive compensation requirement ( United States ex rel. Graves v. ITT Educational Services, Inc.). That court, following the teaching of the Supreme Court and five U.S. Courts of Appeals in an extensive and well-reasoned decision that recognized the relevant distinctions in the HEA structure, understood that False Claims Act liability attaches not to the underlying allegedly fraudulent activity, but to the claim for payment. Judge Easterbrook’s opinion noted this case, which was squarely on point to the case before him, toward the end of his brief opinion. However, he gave it short shrift because it was decided by a district court judge (it was affirmed without opinion by the Fifth Circuit).

Judge Easterbrook seems to have had some inkling of the flood of litigation that his opinion may cause. In discussing the ITT case and Oakland City University’s protests that any purported regulatory violation in a funding program could require litigation in a False Claims Act suit, he took refuge in the requirement that the violation must be “knowing.” 

As he stated, “[t]ripping up on a regulatory violation does not entail a knowingly false representation.” That is no bulwark against abusive plaintiffs’ attorneys. It will not be hard to plead a knowing violation, survive a motion to dismiss, and subject institutions to extensive discovery aimed at determining whether someone acting on their behalf “knew” that they planned to violate one of the many requirements of doubtful specificity in the HEA and the voluminous Department regulations.

Judge Easterbrook’s bland assurances that they will ultimately prevail will be cold comfort later after thousands of dollars of legal fees, extensive distractions from their missions of educating students, and smears against their reputations in the news media. Unless Oakland City is reversed, it is Judge Easterbrook and the Seventh Circuit who have unfortunately tripped up. 

Author/s: 
Mark L. Pelesh
Author's email: 
info@insidehighered.com

Mark L. Pelesh is executive vice president for legislative and regulatory affairs for Corinthian Colleges, Inc. He was formerly the head of the Education Law Group at Drinker Biddle & Reath in Washington, and specialized in the Higher Education Act and U.S. Department of Education regulations.

Everything to Everyone

Whether we’re aware of it or not, the doctrine of “fair use” built into copyright law is one of the most important protections available to scholars, librarians, and students. Every time you quote from someone else’s work, every time you photocopy an article for a student, every time you read a passage aloud to your class, you are technically in violation of copyright.

The reason that an army of publishers and FBI agents aren’t smashing down your office door is that U.S. jurisprudence has long understood that a totalizing approach to copyright would be disastrous. Fair use is the only way we as individuals can together do what is fundamentally a collective endeavor, scholarship, in an information ecology that otherwise lives and dies by the intensely individualizing force of the marketplace.

But fair use has been carrying a heavy load lately, and it’s starting to show its limitations. Over the last few decades and especially amid the recent “copyright wars,” a powerful new philosophy has emerged: Rather than seeing copyright as a careful balance between the interests of private owners and the public, powerful content industries have argued that robustly protecting private interests is always the best way to serve the public. It’s the trickle-down theory of knowledge: Give the power to the producers and get out of the way, and it will eventually get to everyone who needs it. And digital technologies have handed copyright owners further power to regulate the use of their work, to further commodify information in ways never before imagined.

While most of us in higher education are little content industries ourselves, we should not be seduced into forgetting our role first and foremost as the keepers, distributors, and developers of our society’s body of public knowledge. We must fight for the promise copyright made to the public: All these economic rights are only in the service of intellectual progress. However, our rhetorical arsenal in this battle seems to be only to trot out fair use, i.e. the right to violate copyright for progressive reasons. Technical copy protection? Don’t forget about fair use. Restricting peer-to-peer networks? Don’t forget about fair use. Suing our students for downloading? Don’t forget about fair use. Automatic permission systems in educational courseware? Don’t forget about fair use. It’s a wonder the poor statute can barely stand, considering how often it is invoked as defense, criticized as folly.

This dependence on fair use, to somehow safeguard all of the myriad “public interest” elements of copyright’s balance, risks crushing it altogether -- no more so than in the pending battle around Google Book Search.

For those who don’t know, the search engine giant recently announced its aspiration to digitize every book ever printed. To do this, it partnered with the university libraries of Stanford, Harvard, Michigan, and Oxford, and with the New York Public Library. Together they have already begun the process of digitizing works whose copyright protection has run out -- right now, those published before 1924. These books would be full-text searchable and could be read in their entirety online, for free. For more recent books still protected under copyright, Google intends to digitize and make them searchable as well; however, the text returned in response to the search query would only be a short excerpt around the located word or phrase. Publishers who don’t want their work to appear at all can opt out of the system. Links will lead users to vendors where the book in question can be purchased.

To be clear, Google’s project does require making copies of numerous copyrighted books, and an unauthorized copy at that. Google says this copy is a fair use. And in lawsuits brought in September and October of 2005, the Author’s Guild ( complaint) and the Association of American Publishers ( complaint) argue it is a violation of their rights, and an attempt to unfairly capitalize on their work.

Unlike battles around digital music that have occupied the courts’ attention of late, this case will be of vital importance for the academic community. What is at stake is the possibility of a digital database of all written knowledge, and the question of who gets to produce it and under what conditions. Some think this is the Library at Alexandria finally realized; others think it's risky to have just one company running the stacks. But the case will live or die not on the question of the value of such a database to users, but on the narrower legal question of whether Google has the right to scan the books to begin with.

Perhaps this case will settle -- Google certainly has the funds to do so if it chooses. If it does get heard by the courts, what is of greatest importance, I believe, is how well the doctrine of fair use can carry the weight of this particular dispute. Lawrence Lessig has argued that fair use is being stretched thin because copying is so fundamental to the digital environment; uses that never even rang copyright’s bell, because they now require a copy to be made in the process, find themselves under legal scrutiny. I believe this is true. But fair use has already been pulled in too many directions, well before the Internet stretched it to its breaking point.

Fair use has a century-long history in U.S. courts, as a handy way for judges to stave off copyright claims when the use in question is socially valuable. At first, it was a way to protect small amounts of copying for the sake of criticism; as Justice Story noted in Folsom v. Marsh (1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”

As such, one of the important criteria used by the courts to judge a use fair has been whether the new work is “transformative,” rather than merely replacing the old. The most famous of these is Acuff-Rose v. Campbell (1994), in which a surprisingly culturally savvy Supreme Court found that 2 Live Crew’s sampling of the Roy Orbison classic “Pretty Woman” was a kind of parody, however crude, and should be protected as fair -- it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

However, when fair use was finally codified in 1976, the primary motivation was not to protect criticism or parody but to accommodate the increasing use of the Xerox machine, particularly in education. University libraries did not want to risk liability when they made copies of journals and book chapters for faculty and students, and aggressively lobbied Congress for some legal protection to do so. When fair use became law, it included the four factors that had developed through court precedent, but also specified “multiple copies for classroom use” alongside parody, criticism, journalism, and scholarship as the likely contexts for the use to be considered fair.

Making multiple copies of an article for use in the classroom does not claim to produce a new work, in the way that sampling Orbison’s tune does. The value of the use is not that it is “transformative,” but that it is “distributive.” Now fair use is saddled with two aspirations. If the first understands that new work often needs to lean on and borrow from existing work, the second understands that the market mechanisms and distribution technologies that circulate work do not always achieve the scope and access we would like, or that other socially valuable activities require.

The courts have since used fair use in this ‘distributive’ sense, allowing cable TV to retransmit copyrighted broadcasts to audiences who could not otherwise receive them, prohibiting Kinko’s from producing course packets without paying a fee but leaving open the possibility that universities could do so as long as they do not enjoy direct commercial gain, and most notably in Sony v. Universal (1984), granting VCR manufacturers immunity to copyright penalties because some VCR users do make unauthorized copies of protected movies. The court argued that users have the right to record shows in order to watch them at other times, that this in fact “enlarges the television viewing audience” -- even the beloved Mr. Rogers testified that he wanted public school teachers to be able to tape his show and show it in class the next day. Again, these fair uses are not transformative, but distributive.

Is Google’s book search project fair use? This was the question vigorously debated, but by no means settled, at the recent “Battle over Books” debate at the New York Public Library and the blog-off that followed. Most copyright watchers largely agree that, if it makes it to court, the legal answer will come down to a battle of precedents. (See, for example, Jonathan Band’s “The Google Print Library: A Copyright Analysis.”) Google will come out on top if the court sees the case as akin to Kelly v. Arriba-Soft (2003), which allowed an image search engine to copy images from the Web so as to make thumbnail versions available to user queries.

The publishers and authors will likely triumph if the court turns to UMG Recordings et. al. v. MP3.com (2000), where MP3.com was found to be infringing when it made single copies of 400,000 CDs in order to stock a digital locker from which users could stream music they could prove they already owned. Google needs fair use to accommodate an activity that is neither “transformative” in the classic sense, or “distributive” in the Sony sense. Neither precedent did either, and the solutions were work-arounds to force the square pegs of searching and streaming in the oddly-shaped hole fair use offers them.

Let’s give fair use a break by sending in a legislative relief pitcher, one that can better allow for the role search engines play in facilitating the circulation of digital information. If fair use has been protecting both ‘transformative’ and ‘distributive’ uses, today we need a statute that can cover the kind of “indexing” uses that Google is after.

If we recognize that the Internet offers us the chance to make much more of our society’s culture and knowledge available to more people, and we recognize that to make this massive resource most useful requires ways to navigate and search it, and we further recognize that search engines like Google need to make copies of that work in order to make it searchable, then we have a genuine and reasonable public interest in ensuring that that they and others can do so. At the same time, we should also ensure that doing so doesn’t undercut the possibility of selling these works, and ideally should help their sales.

The publishers’ concern is not that Google shouldn’t make books searchable, but that they should have to pay a fee to do so. Such a fee represents the compensation not for lost sales, but to match what they might have earned had they provided this search function themselves. So let’s imagine that they do just that; Harper & Collins has already announced that it will develop a digital database of their books, following the lead of academic journal publishers like Sage. We could decide that this is a reasonable exploitation of one’s copyright, and forbid Google from building a library.

What this is likely to produce is a bunch of different, publisher-specific archives, all searchable under different criteria in different ways, all with different rules for how much text you can view and under what conditions -- and price. Smaller publishers will be less able to afford to do any of this, so once again we will be incidentally privileging those represented by the larger publishers when what we want is all work to be as available as possible.

And all publishers will be in a position to exclude some of their works from public view, for whatever idiosyncratic (or, more likely, financial) reasons they fancy. Perhaps someone would develop a meta-search that could query many of these archives simultaneously and return the results together -- in all likelihood, it would be Google. But this does not solve the systemic problem posed by letting publishers also govern access to their content.

What I think we’re after is something more straightforward, but nearly impossible to achieve. In this dream scenario, every author would make his or her work available in a digital form that is searchable but cannot be redistributed, in a widely compatible format, marked with the same kinds of metadata. We wouldn’t need Google Book Search, because these book “footprints” would all be online and available for searches just as Web sites are. But this is certainly an unreasonable and prohibitive request to make of authors, at least right now. For all intents and purposes, this is what Google seems willing to provide for us, with the promise of some ad revenue in return. As a less than perfect version of that ideal, it’s quite good.

Waiting for fair use to shield this expanding range of uses is slowing the innovation in information, knowledge, and culture the Internet seems ready to facilitate. And every time it does, we risk a court setting a retrograde precedent that cements digital culture into place for good. We need a new statute that acknowledges and accommodates the common sense recognition that search is good, that it requires incidental copying, and that it should not be left to individual, competing publishers to make their work part of the public trust.

In a moment when we are handing content owners much more control not only over the use of their work but over access to it, we need to make a parallel commitment to ensuring and expanding access of a different kind, as an aggregate collection of all things thought and written that can be easily explored. And, we need to let fair use protect the activities it’s designed to protect, instead of letting it fray as it stands in as the only protection against a locked and licensed digital world.

Author/s: 
Tarleton Gillespie
Author's email: 
info@insidehighered.com

Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.

A Threat to Freedom

The Supreme Court’s refusal to hear the appeal in Hosty v. Carter lets stand a disastrous decision by the U.S. Court of Appeals for the Seventh Circuit that threatens the autonomy of campus newspapers. And although the decision directly applies only to Wisconsin, Indiana, and Illinois, it will be used by public colleges across the country to censor student expression.

The Hosty case dealt with the administration’s prior restraint of a student newspaper at Governors State University, whose officials had been criticized by the publication. But the ruling will have an enormous impact on college students’ rights. The ruling marks the first major backward step in legal protections of the rights of college students, and it may be the start of an ominous trend. If student-funded newspapers can be censored, then so can student-funded speakers. In loco parentis, the legal concept giving administrators the power to regulate college students as a parent controls immature children, is making a comeback for the first time, decades after it was killed in the 1960s.

The fact that the dismissal of the Hosty case coincides with the current controversy over the Danish cartoons of Muhammad should make us worry about how the new power to censor granted to administrators will be used.

The global protests over these drawings have given us the horrifyingly un-ironic term “cartoon death count.” But in America, the key question is whether newspapers should print offensive content, especially when that content itself is in the news. Most American newspapers have refused to reprint the cartoons -- despite their importance in the news, claiming that readers can understand the cartoons without seeing the images.

Perhaps it’s no coincidence that most of the campus newspapers that have published the Danish cartoons are at public colleges in the  Seventh Circuit, including The Daily Illini (University of Illinois at Urbana-Champaign), The Indy (Illinois State University), The Northern Star (Northern Illinois University), The Communicator (Indiana University-Purdue University at Fort Wayne), and The Badger Herald (University of Wisconsin at Madison). The Hosty case has raised the awareness of student journalists at these campuses, and perhaps made them more sensitive to issues of freedom of the press that are central to this debate.

Sensitivity is the question at stake with regard to the Danish cartoons. Should we be sensitive to the feelings of Muslims who have a sincere religious opposition to visual depictions of Muhammad? Or should we be sensitive to news values that dictate that our first instinct should never be to conceal something from our readers?

As the author of an article that included the controversial Danish cartoons in The Indy, an alternative newspaper at Illinois State University, obviously I have taken a stand on this question. It’s unfortunate that Muslims are offended by these images. But once anyone’s sense of being offended becomes the standard for determining publication, we will have lost much of the liberty essential for a free press.

The principle of freedom of the press holds that these decisions should be made by individual newspapers without government intimidation. But the Hosty ruling now gives administrators the power to impose bans on cartoons such as this, and we can only imagine how many college newspapers will face censorship -- and how many student editors will think twice about printing a controversial story or cartoon.

Of course, the fact that it is legal to print cartoons doesn’t necessarily mean that it’s a good idea. However, the attempts to suppress these cartoons by violence and censorship have made this a question of free expression. It is important for journalists to publish these cartoons no matter how offensive they are, to make the point that journalists should not be intimidated. Newspapers have a duty to print offensive images when they are newsworthy, whether these images are offensive cartoons, or Abu Ghraib torture photos, or the bloody victims of suicide bombers. Sensitivity is reflected in how we react to the racism directed at Muslims, not in our willingness to censor news in order to appease religious traditions.

At a time when media consolidation makes the mainstream media more and more reluctant to offend anyone who might threaten the bottom line, student journalists are the ones who can stand in defense of true freedom of the press. The fact that more student editors than professional ones have dared to print the cartoons should be a matter of quiet disgrace -- not for the students, but for the professionals.

But the Hosty case puts liberty of the campus press at risk. Even if few colleges openly crack down on student newspapers, the threat will always be there. And self-censorship is the greatest danger under a repressive regime. In the wake of the Hazelwood decision by the Supreme Court, which now applies in the Seventh Circuit to colleges, the high school press has been devastated by censorship. Principals across the country routinely censor even the most modest attempts at critical journalism, and many more student journalists simply give up because of the knowledge that they are not free to publish important work.

The response to the cartoon has already brought censorship on campuses. In Canada, Saint Mary’s University philosophy professor Peter March posted the cartoons on his office door, prompting the university to ban them. At Century College in Minnesota, an adjunct instructor who posted the cartoons on a bulletin board was told by a department chair not to replace them after they were ripped down. Other have suffered worse consequences. The Danish editors have faced death threats.

Cartoons have often had a remarkable ability to offend, and the right to print offensive images is fundamental to our constitutional rights. In the 1973 case Papish v. Curators of the University of Missouri, a graduate student was expelled for "indecent conduct or speech" because she handed out a newspaper, The Free Press Underground, that showed a cartoon of a policeman raping the Statue of Liberty. The Supreme Court made the case a cornerstone of student rights and ruled, “the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Now it can be shut off -- for decency, or any other reason.

Cartoons have frequently caused controversy on campus. In 2001, the University of California at Berkeley’s Daily Californian sparked protests because of a cartoon mocking the 9/11 terrorists by depicting them in hell. In 2002, a syndicated Oliphant cartoon showing Muhammed at a cocktail party sparked outrage when Purdue University’s student newspaper printed it. Other cartoons have caused protests or censorship because they mocked university officials or utilized racial stereotypes. In 2005, the University of Illinois’ Daily Illini suspended a cartoonist, Matt Vroom, because of one of his offensive cartoons was deemed anti-Semitic and got published accidentally.

The Daily Illini has also been the focus of debate over publishing the Danish cartoons. After Muslim groups protested the decision, the publisher suspended the editor-in-chief and the viewpoints editor (ostensibly for violating “process” by failing to consult other editors, although it’s hard to imagine any other topic where anyone would object to the viewpoints editor running a column by the editor-in-chief). The Daily Illini followed this up by enacting a new policy banning discussion of the newspaper on blogs by any students who work for the paper.

This incident is particularly troubling because it foretells what could happen to many more editors who dare to offend. The Daily Illini is an independent corporation unaffiliated with the University of Illinois. In theory, this should mean greater freedom. But independence means that these editors have no First Amendment protections against their overseers, as campus newspapers had until the Hosty case. As a former Daily Illini columnist, I can only view with sadness the idea that freedom of the press is being sacrificed at my alma mater on the false altar of religious tolerance.

College administrators have now been given the legal authority to censor any activities funded with student fees, which could have dramatic consequences. If sensitivity to Muslims (or any other group) becomes the prevailing standard, will right-winger Ann Coulter be banned from campuses? Speaking on Feb. 10 at the Conservative Political Action Conference (where Dick Cheney and Bill Frist were also prominent speakers), Coulter declared: “I think our motto should be, post-9/11, raghead talks tough, raghead faces consequences." Although Coulter is an ugly racist, her sickening views need to be countered, not prohibited. However, the first step in condemning Coulter is to repeat her horrible words. If we want to condemn someone, whether a cartoonist or a writer, we must first see the work. And then we must understand that critique, not censorship, is the only way to convince people to comprehend the truth.

The College Media Advisers proclaimed in response to the Supreme Court’s refusal to consider an appeal, “It is now all the more imperative that student publications establish clear operating guidelines as designated public forums, if they already haven’t.” The presidents at Illinois State University, the University of Southern Indiana, and the University of Wisconsin at Platteville have signed declarations protecting freedom of the press on their campuses, but according to the Student Press Law Center, more than 75 public colleges in the seventh circuit have taken no action. Advocates of liberty on college campuses need to convince these campuses to protect their student newspapers, and they also need to persuade state legislators to pass “reverse Hosty” laws to protect the rights of students at campuses like Governors State University that will never voluntarily grant First Amendment rights to their students.

Some critics may see the decision by campus newspapers to reprint these cartoons as a good reason to impose more control by administrators over students. But even those who see publishing the cartoons as a terrible error must understand that the liberty to make mistakes is essential in a free society. It is also essential for students to learn. At campus newspapers across the country, the cartoon controversy has been a tremendous learning experience for student editors, whether they decided to print the cartoons or not. They have learned something about Muslims, and about whether it is wise to offend readers. And, sadly, student editors have learned in the past month that freedom of the press is not so secure as they might wish.

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

John K. Wilson is the founder of College Freedom, a Web site about academic freedom issues, and the author of the forthcoming book Patriotic Correctness: Academic Freedom and Its Enemies.

Unfair to FAIR

It should not be the case that a victory for the Department of Defense is a defeat for academic freedom, but such is the outcome of Rumsfeld v. FAIR, which the  U.S. Supreme Court decided Monday in an 8-0 ruling favoring the government.

FAIR is the Forum for Academic and Institutional Rights, a group of prominent law schools whose policies forbid discrimination based on sexual orientation and other factors. FAIR sought to restrict, not prevent, military recruitment because the military’s discriminatory policy of “don’t ask, don’t tell” is aimed at gays and lesbians.  

The U.S. military, on the other hand, supported by the Solomon Amendment, claims that its rights to see potential recruits in law schools and, indeed, in all other components of the university, trump the rights of universities to be true to their mission.  The Solomon Amendment was first passed in 1995 by Congress and has been revised three times since, with each revision placing greater pressure on universities to give military recruiters less restricted access to students or face the prospect of losing all federal funding.

FAIR’s mission is “to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.”  This is “starry-eyed idealism,” according to one Congressman who supported the Solomon Amendment that “comes with a price” -- lose all federal funding unless you support the military’s discriminatory policy.  

In some circles, such threats are called extortion, but coming from the government they are called “funding leverage.” The roughly $35 billion in federal money now going to universities would be lost if any component of the universities -- e.g., law schools or medical schools or education schools -- defied the Solomon Amendment.

For Chief Justice Roberts extortion is not “compelled speech” because all the government seeks to regulate is “conduct.” I liken this to my mother’s threats of denying me dinner following my making a reasoned objection to some unjust parental rule: it is your conduct, son, not the logic of your argument that offends; obey or no dinner.

As a child, I lacked the autonomy that universities have traditionally enjoyed in the United States. Institutional autonomy was described by the Global Colloquium of University Presidents, which met a year ago at Columbia University, as “the guarantor of academic freedom.” Institutional autonomy includes “the right of the university to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

The Roberts court ignores this tradition of academic common law and instead asserts that universities are “free” to determine their mission, including one that forbids discrimination, but only if they are willing to forgo access to the people’s money, the very funding that subsidizes new knowledge, new discoveries, and new policies, all for the purpose of assisting the public good.  

The not insignificant crumb the Court did offer the academy in its Solomon [not Solomonic] ruling is the right of the academy to protest when military recruiters visit campus. Campus communities should vigorously exercise that right until such time as the US military changes its anti-discrimination policies to accord with the more enlightened of the academy.    

Author/s: 
Roger W. Bowen
Author's email: 
info@insidehighered.com

Roger W. Bowen is general secretary of the American Association of University Professors, which filed an amicus brief in support of FAIR.

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.

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.

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.

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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