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Federal Judge Halts Use of University Speech Code
The Legal Intelligencer ^ | 09-10-2003 | Shannon P. Duffy

Posted on 09/10/2003 5:48:19 AM PDT by Behind Liberal Lines

A federal judge has enjoined Shippensburg University from enforcing key provisions of a speech code that bars all "acts of intolerance" -- including racist, sexist and homophobic speech -- after finding that the Pennsylvania university failed to show that the code was needed to protect students' rights or to avoid disruption of the educational process.

In his 32-page opinion in Bair v. Shippensburg University, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania found that while the speech code was "obviously well-intentioned," it simply went too far in attempting to regulate the speech of adult students.

The ruling is a victory for attorneys David A. French of Greenebaum Doll & McDonald in Lexington, Ky., and William Adair Bonner of Media, Pa., who urged the court to "restore the marketplace of ideas and remind the university that it is a laboratory of democracy -- not an incubator of indoctrination."

In an order handed down yesterday, Jones issued a preliminary injunction that bars the university from enforcing four sections of its speech code:

"Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age and/or political characteristics."

"The expression of ones' beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another."

"No person shall participate in acts of intolerance that demonstrate malicious intentions toward others."

"Racism shall be defined as the subordination of any person or group based upon race, color, creed or national origin. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidating and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age. Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors."

Jones found that "the university speech code, even narrowly construed, prohibits a considerable amount of speech ... [that] is neither vulgar nor obscene."

Lawyers for the university argued that the speech code was "merely aspirational" and therefore was not subject to First Amendment scrutiny.

Jones disagreed, saying "this argument fails because it is obvious that violations of the express provisions of the code subject Shippensburg students to the disciplinary process set forth therein."

Jones found that the speech code was "part of an attempt to achieve a utopian community within Shippensburg" in which "students are directed to respect the rights of other students in a world where reasoned, rational debate is the norm."

The university's lawyers, Jones noted, argued that the code "will foster free speech, rather than discourage it."

But Jones said "this sword has two edges."

During the tenure of the university's current president, Jones said, the speech code "has not been used, and likely will not ever be used, to punish students for exercising their First Amendment rights."

But in a lawsuit that presents a facial challenge to the code, Jones said, "our inquiry must assume not the best of intentions, but the worst."

"While we recognize that citing students under the suspect provisions has not been a common practice, in the hands of another administration these provisions could certainly be used to truncate debate and free expression by students," Jones wrote.

Jones found that the speech code was not saved by the fact that some of the forms of discrimination it prohibits are also prohibited by federal law, such as race and sex discrimination.

"While the university's objective of preventing forms of discrimination against these protected classes of individuals is certainly laudable, this ambition still runs afoul of First Amendment concerns if discrimination policies have the effect of prohibiting protected forms of expression," Jones wrote.

"Simply utilizing buzzwords applicable to anti-discrimination legislation does not cure this deficiency."

Jones found that the university went too far when it directed students to communicate their beliefs "in a manner that does not provoke, harass, intimidate or harm another."

"The concept of prohibiting communications which 'provoke' suggests that a student's beliefs should not be communicated in a way that arouses interest and stimulates a response. Aside from the constitutional concerns of the policy, it is worth noting that such a view is inconsistent with our nation's tradition of safeguarding free and unfettered interplay of competing views in the academic arena," Jones wrote.

"Communications which provoke a response, especially in the university setting, have historically been deemed an objective to be sought after rather than a detriment to be avoided. Moreover, the terms 'provoke' and 'intimidate' focus upon listeners' reactions to speech," Jones wrote.

The government, Jones found, "may not prohibit speech ... based solely on the impact that its offensive content may have on a listener."

Even offensive speech is protected by the First Amendment, Jones found.

"As the Supreme Court has emphatically declared, 'If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,'" Jones wrote, quoting from the U.S. Supreme Court's 1989 decision in Texas v. Johnson.


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; US: Pennsylvania
KEYWORDS: academia; academicbias; campusbias; collegebias; diversity; highereducation; multiculturalism; pc; shippensburgu; speechcode; speechcodes; universitybias
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1 posted on 09/10/2003 5:48:20 AM PDT by Behind Liberal Lines
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To: Hobsonphile
Leftism on campus ping
2 posted on 09/10/2003 5:48:45 AM PDT by Behind Liberal Lines
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To: Behind Liberal Lines
Could someone with more time and a more recent review of the rules of grammer please count the errors in the code language. On first read, I counted three major errors.
3 posted on 09/10/2003 5:55:41 AM PDT by Mercat
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To: Behind Liberal Lines
Well I guess that'll pi** off the f&(*^#$ a!!#**^ bunch of liberal c&*(&!**#Y*^% democrat pains in the a## elitist sh%$ for brains members of the GLAAD NAMBLA PETAphilic P.C. losers.
4 posted on 09/10/2003 5:58:48 AM PDT by theDentist (Liberals can sugarcoat sh** all they want. I'm not biting.)
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To: Behind Liberal Lines
"Simply utilizing buzzwords applicable to anti-discrimination legislation does not cure this deficiency."

Buzzwords like "utilizing"? ;^)

Good thing the ninth circuit court didn't hear this case.

5 posted on 09/10/2003 6:11:40 AM PDT by randog (Everything works great 'til the current flows.)
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To: Behind Liberal Lines
The irony of this lawsuit is: It effectively kills pc.

PC started by infringing on individuals' rights to use certain words and "feel" certain feelings--hate, intolerance, etc. Remember the N-word? Remember sennnnnsitivvvvvity?

This lawsuit could easily come back to bite the liberals in their collective rears---if the conservative side will grab hold and use the law, as well.
6 posted on 09/10/2003 6:15:13 AM PDT by TomGuy
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To: Behind Liberal Lines
I'm waiting patiently for all those FReepers who constantly attack Federal judges to show up and say this one made the right call.
7 posted on 09/10/2003 6:19:05 AM PDT by lugsoul (And I threw down my enemy and smote his ruin on the mountainside)
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To: lugsoul
ping.......
8 posted on 09/10/2003 6:36:46 AM PDT by pointsal
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To: Behind Liberal Lines
SPOTREP
9 posted on 09/10/2003 8:09:32 AM PDT by LiteKeeper
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To: lugsoul
First we will have to see if this decision holds up under appeal.

Nice job by the Honorable Judge throwing Texas v. Johnson back at them. The Leftists in this country are all for hate speech, as long as it's the United States that is the object of hate.

I'd love to see this case end up in SCOTUS and watch the Leftist Justices try and square these obnoxious speech codes with the First Amendment.
10 posted on 09/10/2003 8:15:35 AM PDT by You Dirty Rats
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To: Behind Liberal Lines
Once, again, a university proves it isn't about education, rather, it is about political control and brainwashing.
11 posted on 09/10/2003 8:17:56 AM PDT by PatrioticAmerican (Helping Mexicans invade America is TREASON!)
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To: You Dirty Rats
"The Leftists in this country are all for hate speech, as long as it's the United States that is the object of hate."

I take it from your statement that you find Texas v. Johnson objectionable. One of the "leftists" who voted in the majority in that case was Antonin Scalia.

BTW - does your injunction to wait until appeals are decided also apply to decisions by Federal judges that you disagree with?

My criticism of the "black-robed tyrant" bashers is not based on ideology. It is a criticism of the overt double standard that these FReepers display, and their failure to recognize that many of the best jurists in our great country sit on the Federal bench. You'll never hear anyone here hold back on criticizing a trial judge's decision by saying "let's see what happens on appeal." But there is also no shortage of folks here who like to talk about filing lawsuits and relying on judges to achieve their political ends. Frankly, I think many posters have a profound misunderstanding of the role of the judicial system in a constitutional republic, and judges are often easy targets because the nature and reasoning of their decisions is rarely explained in the media - only the presumed impact is addressed in the news.

As for Texas v. Johnson, I'll simply refer you to the court itself - "It is poignant but fundamental that the flag protects those who hold it in contempt."

12 posted on 09/10/2003 8:26:34 AM PDT by lugsoul (And I threw down my enemy and smote his ruin on the mountainside)
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To: Behind Liberal Lines
>>Even offensive speech is protected by the First Amendment, Jones found.<<

I think this sums it up nicely. After all, who is to define what is "offensive?"
13 posted on 09/10/2003 8:30:46 AM PDT by RobRoy
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To: TomGuy
According to the first amendment, I can call a black man a nigger, a white man a cracker, a jew a kike and a mexican a spic (sp?). It may make me a jerk or worse, but it is protected speech. For who is really to decide what is or isn's propper speach.

And yes, this effectively kills PC in many parts of our culture. I'm self-employed, I can say anything I want. It may cost me business, but it can't get me fired or jailed.

And just knowing that I have that authority over my own destiny is incredibly freeing, speaking as a once "employee."
14 posted on 09/10/2003 8:34:40 AM PDT by RobRoy
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To: Black Agnes; rmlew; cardinal4; LiteKeeper; Lizard_King; Sir_Ed; TLBSHOW; BigRedQuark; yendu bwam; ..
Leftism on Campus ping!

If you would like to be added to the Leftism on Campus ping list, please
notify me via FReep-mail.

Regards...
15 posted on 09/10/2003 10:12:44 AM PDT by Hobsonphile (Art should celebrate God's creation. Writers should love humanity in all its forms.)
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To: Hobsonphile
Thanks for the ping. This is GREAT news. Keep your fingers crossed that the Supreme Court, when it hears the case, will agree with this sensible Judge.
16 posted on 09/10/2003 10:24:02 AM PDT by The Westerner
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To: Behind Liberal Lines
"Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors."

"Social Justice" MYASS!

17 posted on 09/10/2003 10:10:13 PM PDT by ppaul
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To: ppaul
Bump for some good news.
18 posted on 09/10/2003 10:50:56 PM PDT by The Westerner
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To: Behind Liberal Lines
"Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age and/or political characteristics."

Yes, one must learn to tolerate one's roommate's indulgence in menage a trois homosexual sex acts </SARCASM>

19 posted on 09/11/2003 8:41:40 AM PDT by Tolerance Sucks Rocks (Test of metal: will of iron, heart of gold, nerves of steel, balls of brass. ~George Carlin)
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To: Behind Liberal Lines
"The expression of ones' beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another."

For example, one must not threaten to strangle al-Qaeda members in front of self-interested Islamic students...

20 posted on 09/11/2003 8:42:56 AM PDT by Tolerance Sucks Rocks (Test of metal: will of iron, heart of gold, nerves of steel, balls of brass. ~George Carlin)
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