What free speech looks like.

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Campus Dissidents Win in Court While Losing

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In an important decision on the rights of campus dissidents, a U.S. appeals court has held that free speech protections won’t excuse acts of harassment. But it also held that a student who has been disciplined can sue the university if the punishment was for expressing political views.

The two parts of the ruling last week by the U.S. Court of Appeals for the Ninth Circuit cut in opposite directions. The first will encourage administrators; the second will hearten student activists. But the more important win is for the activists, who can get a day in court after being disciplined under university procedures that are often opaque.

The case grew out of events that took place in May 2011 at the California State University campus in Fresno. Neil O’Brien had arrived as a student the previous fall and quickly established himself as a campus conservative, organizing a chapter of Young Americans for Liberty and events for the Central Valley Tea Party. In particular, O’Brien became a critic of the Fresno State administration’s attitude toward immigrant and Latino students, which included championing a student body president who was undocumented, sponsoring a Chicano/Latino commencement ceremony and supporting the Dream Act, a legislative proposal to give legal status to immigrants brought to the U.S. by their parents.

According to O’Brien, whose version of the events was relied on by the court because he was the plaintiff, university administrators had it in for him. One assistant dean, he alleged, wrote to faculty members to ask them to “gather information and complaints against him.”

Matters came to a head when O’Brien read a poem in a supplement to the school newspaper that was published by the university’s Chicano and Latin American Studies department. The poem referred to America as “land of the biggest genocide,” “rapist of the earth” and “land of glorified killers, the eater of souls.”

O’Brien went to the CLS department with his video camera. He entered the open office doors of two professors in succession, demanding that they speak to him about the poem. The professors, Victor Torres and Maria Lopes, each refused, and eventually closed their doors. Both subsequently filed complaints with campus police.

In a subsequent disciplinary hearing,  the university found that O’Brien had violated a provision of its student honor code that disciplines any conduct that “threatens or endangers the health or safety of any person” by means of “physical abuse, threats, intimidation, harassment, or sexual misconduct.” The hearing officer recommended that O’Brien be banned from coming within 100 feet of the Latin American studies building.

The university did that, but it also added a crucial further piece of discipline: O’Brien was placed on disciplinary probation, which barred him from running any campus organization, including Young Americans for Liberty. O’Brien sued, claiming the anti-harassment provision of the campus code was unconstitutional for vagueness and as applied to his conduct.

The Ninth Circuit rejected those arguments in an opinion by a centrist Clinton appointee, William Fletcher. The court held that the code was less vague than federal anti-harassment laws. And it said that a reasonable person in the professors’ position could have found O’Brien’s conduct intimidating.

Yet at the same time, Fletcher gave student activists everywhere a major win. He wrote that O’Brien’s suit against Fresno State for alleged retaliation in violation of his free speech rights could go forward. According to the court, O’Brien alleged facts which, if found true, would show that the administrators targeted him for punishment that would chill free speech by prohibiting leadership of campus organizations. In particular, Fletcher noted the allegation that the administrators had asked for information to discipline O’Brien, and that the probation O’Brien received went beyond the recommendation of the hearing officer.

In practice, this means that students at public universities who can credibly suggest that they’ve made themselves unpopular with administrators can sue for retaliatory free-speech violations when they’ve been disciplined -- even if they’ve actually committed the acts that gave rise to the discipline. That guarantees the students a judicial hearing and discovery of university documents.

The full-dress judicial proceeding is especially valuable in an era where university discipline is frequently based on semi-secret procedures and prevents students from relying on lawyers.

Fletcher emphasized that his opinion should not be “overread” and was “by no means intended to disable university faculty and administrators from imposing discipline on students whose misconduct is preceded by or accompanied by the expression of opinions with which faculty members or administrators strongly disagree.”

But in practice the decision will encourage universities to act carefully in disciplining students who challenge faculty and administration views. That’s good for free speech and free thought on campus.

  1. The fairness of that hearing wasn’t before the court. But the Ninth Circuit noted that O’Brien wasn’t allowed to have a lawyer, that the video he took wasn’t considered, and that according to O’Brien, a police officer who had seen the tape wasn’t called as a witness despite being outside the hearing room. All this suggests possible due-process violations.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net