College's "sexual harassment" policy found unconstitutional

paulsby

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Wed Jul-15-09 04:14 PM
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College's "sexual harassment" policy found unconstitutional

not surprising when many of these policies go WAY too far in trying to restrict speech. these policies are frequently challenged and overturned. this is an interesting one.

source: www.volokh.com

Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds: This emerges from the incident in which a professor in a speech class refused to grade a student's presentation, apparently because of the religious nature of the student's presentation, the student's expression of opposition for same-sex marriage in the presentation, or both. (The professor apparently also called the student a "fascist bastard" in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to let the student finish the presentation.) But the injunction, in Lopez v. Candaele, focuses on the policy, not the incident. Here's what the court says, in most relevant part (some paragraph breaks added):

The definitions section of the Policy, Section 15003, states:Sexual harassment is defined as: Unwelcome sexual advances, requests for sexual favors, and other verbal, visual or physical conduct of a sexual nature, made by someone from or in the workplace or in the educational setting, under any of the following conditions: ..<.> (3) The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment....

We conclude that the Policy prohibits a substantial amount of protected free speech, even judged in relation to unprotected conduct that it can validly prohibit. First, as the above quotations make clear, the Policy prohibits some speech solely because the speaker “has the purpose” of causing an effect, regardless of whether the speech actually has any effect. The Supreme Court has held that a school may not prohibit speech unless the speech will “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). would undermine the school’s basic educational mission.”); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that a high school may control the content of student speech in school-sponsored expressive activities so long as the controls are reasonably related to legitimate pedagogical concerns).]

Other circuits have found similar sexual harassment policies that restrict speech based on the speaker’s motives to be unconstitutional in light of Tinker. See DeJohn, 537 F.3d at 317 (“he focus on motive is contrary to Tinker's requirement that speech cannot be prohibited in the absence of a tenable threat of disruption.”); Saxe, 240 F.3d at 216–17 (“As an initial matter, the Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech ‘which has the purpose or effect of’ interfering with educational performance or creating a hostile environment. This ignores Tinker's requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it.”). Notably, in Saxe, a similar policy was found unconstitutional though it was adopted by an elementary and high school district, whose students receive less First Amendment protection than college students. Thus, the Policy’s regulation of speech based solely on the motive of the speaker is unconstitutional.

Moreover, by using subjective words such as “hostile” and “offensive,” the Policy is so subjective and broad that it applies to protected speech. In DeJohn, the Third Circuit concluded that such a policy must be invalidated unless it contains “a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work.” 537 F.3d at 318. Here, the Policy does not contain both a subjective and objective requirement. To the contrary, the District’s website admonishes, “If unsure if certain comments or behavior are offensive do not do it, do not say it.... Ask if something you do or say is being perceived as offensive or unwelcome.”