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Constitutional experts analyze Stanford speech case

STANFORD --Five distinguished U.S. constitutional scholars turned a recent court case that pitted members of the Stanford community against each other into an impromptu class on the First Amendment on Tuesday, March 7.

Among the students in the class were University President Gerhard Casper, himself a law professor, and the university's two highest-ranking legal counsels, who must decide if they will appeal a ruling by a California Superior Court judge against the university's so-called "speech code." Casper is expected to speak on the subject to the Faculty Senate on Thursday, March 9.

Santa Clara County Judge Peter G. Stone ruled Feb. 27 in favor of several Stanford law students and recent graduates who had challenged a written interpretation of Stanford's Fundamental Standard for student behavior. The policy made clear that students could be disciplined for engaging in certain forms of discriminatory harassment via speech on campus.

The interpretation of the student conduct code, drafted by law Professor Thomas Grey, a constitutional scholar, and approved in May 1990 by the university's Student Conduct Legislative Council, specifically prohibited "discriminatory harassment," including "personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation or national and ethnic origin." Personal vilification was defined as intentional, personally directed “ 'fighting' words or non- verbal symbols" that "are commonly understood to convey direct and visceral hatred or contempt for human beings" on the basis of their membership in those groups.

The interpretation never was used to discipline students but could have been, had an incident arisen meeting its specifications and had action been sought by the affected student(s).

Constitutional scholar Kathleen Sullivan began the class by summarizing Judge Stone's rationale for his decision to issue a preliminary injunction against enforcement of the policy. He upheld the constitutionality of California's Leonard Law, an effort by the state legislature to apply the same First Amendment protections to people at private post-secondary educational institutions as apply to public institutions. Then he struck down Stanford's policy as violating those standards.

Stanford lawyers had argued that the Leonard Law violated the institution's own free speech rights by requiring the institution to be associated with or to sponsor bigoted speech against its principles of equality to all and nondiscrimination, Sullivan said.

The judge disagreed, she said, saying that Stanford "by being an institution that sponsors academic freedom as its motto, that all viewpoints are expressible, Stanford was, in effect, incapable of being an ideological, monolithic institution." It was not like the NAACP or Ku Klux Klan, organizations that have ideological views that make it permissible for them to exclude people with differing views from participation. And, while courts have ruled that some organizations cannot be compelled to "associate with speech" they don't like - for example, a Jehovah's Witness cannot be compelled to make a pledge of allegiance and Pacific Gas & Electric cannot be required to include contrary viewpoints in its billing envelopes - Sullivan said that the judge told Stanford, "You are a university and all viewpoints are being imposed on you. You have to let all viewpoints [be] free to operate, at least outside of classrooms on the Stanford campus. . . . If you disagree with the speech, you can speak back."

Law Professor William Cohen, another constitutional scholar, said he was surprised by the university's challenge of the Leonard Law and concerned about the implications of it, should the university appeal. "Those of us who have been around Stanford a long time were under the impression that Stanford had, as a matter of voluntary decision, decided to apply First Amendment standards to itself . . . that would apply to a public university."

"If Stanford should win on its Leonard Act argument, Stanford would not only have the theoretical autonomy to ignore First Amendment standards in disciplining its students, but Stanford would have announced that it desires that autonomy, that Stanford desires not to be bound by the First Amendment standards that would apply to the University of California," Cohen said.

He added that members of the university's legal staff had told him that the university voluntarily applied the First Amendment only to its faculty. "I'm not sure that should make staff or students feel comfortable."

Constitutional scholar Paul Brest, dean of the law school, said, however, that it was his understanding that "Stanford had bound itself to First Amendment principles but not every doctrinal twist and turn."

Judge Stone found the Stanford policy violated the First Amendment, Sullivan said, because it was a "content-based law," singling out some words that might lead to a fistfight - only a subset of "fighting words," a term first used in the 1940s Supreme Court decision that made it permissible to ban words "which by their very utterance inflict injury or tend to incite to an immediate breach of the peace."

He ruled that the Stanford policy did not meet exceptions the Supreme Court has set out, in that it is aimed at speech, not at conduct; it is aimed not at consequences of the speech but at the speech as such; and it is aimed at a class of words rather than at protecting a group of people.

In 1992, the U.S. Supreme Court struck down a St. Paul, Minn., hate speech ordinance that banned the use of symbols that tend to arouse racial and other group-based hatred, resentment or alarm. Stone said the Stanford law was like that ordinance in that it goes beyond mere words that would cause a fistfight, and it does so on the basis of their content.

Constitutional scholar Gerald Gunther noted that the court has never upheld any ban on speech that was based on the “fighting words” concept since the original adoption of that criterion in Chaplinsky v. New Hampshire (1942). Gunther, who opposed the Stanford policy at the time of its adoption, also said he believed that the Stanford policy "reaches beyond the fighting words category to deal with vilification and stigmatization, not just fisticuffs."

Cohen said his own view is that the Stanford policy is "among the narrowest in the nation" and may meet a First Amendment test upon appeal.

"There is a potential clash between prohibition of harassment and the protection of free speech," Grey said, which is what the Stanford policy tried to address. He said the policy had been incorrectly labeled a "speech code" when it is really a definition for students of when they might be disciplined for harassment that was speech, rather than, for example, actions such as tearing up someone's papers or physically assaulting them.

He said it was aimed at speech that can constitute discriminatory harassment, which the university is obligated to prohibit under the Civil Rights Act. Case law from the workplace has shown, he said, that harassing speech can be ruled to be discriminatory harassment, and Supreme Court Justice Antonin Scalia, writing for the majority in the St. Paul case, said that there may be cases, such as enforcement of Title 7 of the Civil Rights Act, where content-based prohibitions on speech did not violate the First Amendment.

"My view when I proposed this and the view of the legislative apparatus [when it was passed in 1990] was that it was too vague to say [to students], you have free speech but you can't harass." By defining harassing speech narrowly, he said, there is less of a "chilling effect" on free speech than if the limits are decided on a case-by-case basis.

Since the court ruling, Grey said, "I think we have less protection of civil liberties now than when this [policy] was in effect."

Gunther said he believed the exceptions on content-based speech bans mentioned in the Scalia opinion were "patched-on efforts to maintain a majority" and that future Supreme Court decisions would be necessary to see if they would hold.

If Justice Stone's opinion regarding Stanford were to become law, Brest asked Gunther, would sexual harassment based on words rather than unwanted touching be protected by the Constitution?

Gunther answered that many judges and scholars believe it is "high time the court addresses this issue," because it is unresolved.

Grey agreed that "there are problems with vagueness in employment discrimination law" as it is administered by the federal Equal Employment Opportunity Commission. The law should require employers and educational institutions to clearly state what constitutes harassment, he suggested, as Stanford tried to do in the policy just struck down.



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