Posted by Eugene Volokh:
Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on
First Amendment Grounds:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247685307
This emerges from the [1]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 [2]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....
Two websites, one maintained by the [Los Angeles Community College]
District and the other by [Los Angeles City College], purport to
expound upon the Policy. The District�s website states that sexual
harassment can include �[d]isparaging sexual remarks about your
gender[, r]epeated sexist jokes, dirty jokes or sexual slurs about
your clothing, body, or sexual activities[, and d]isplay of
sexually suggestive objects, pictures, cartoons, posters, screen
savers[.]�Moreover, the site states, �If [you are] 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. If the answer is yes, stop the behavior.�
LACC�s website states that �[s]exual harassment can be intentional
or unintentional.� The website further states:
It is important to be aware that sexual remarks or physical conduct
of a sexual nature may be offensive or can make some people
uncomfortable even if you wouldn�t feel the same way yourself. It
is therefore sometimes difficult to know what type of behavior is
sexual harassment. However the defining characteristic of sexual
harassment is that it is unwanted and pervasive. It�s important to
clearly let an offender know that certain actions are unwelcome.
The four most common types of sexual harassment are:
1. Sexual Harassment based on your gender: This is generalized
sexist statements, actions and behavior that convey insulting,
intrusive or degrading attitudes/comments about women or men.
Examples include insulting remarks; intrusive comments about
physical appearance; offensive written material such as graffiti,
calendars, cartoons, emails; obscene gestures or sounds; sexual
slurs, obscene jokes, humor about sex....
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). [Footnote: There are certain categories of speech,
inapplicable here, that are excepted from the Tinker standard. See,
e.g., Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986)
(holding that a high school may ban from classrooms and assemblies
�vulgar and lewd speech [that] 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
(�[T]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 [you are] 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.�
Thus, the Policy reaches constitutionally protected speech that is
merely offensive to some listeners, such as discussions of
religion, homosexual relations and marriage, sexual morality and
freedom, polygamy, or even gender politics and policies. Indeed,
the LACC�s website indicates that sexual harassment can include
�sexist statements ... or degrading attitudes/comments about women
or men.� This could include an individual�s outdated, though
protected, opinions on the proper role of the genders. While it may
be desirable to promote harmony and civility, these values cannot
be enforced at the expense of protected speech under the First
Amendment.
Thus, the Policy is unconstitutionally overbroad.
([3]Show more of the opinion.)
Before striking down a law as facially unconstitutional, a court must
consider any narrowing construction that could render the law
consistent with the First Amendment.... �Constitutional narrowing
seeks to add a constraint to the statute that its drafters plainly had
not meant to put there; it is akin to partial invalidation of the
statute.... In performing our constitutional narrowing function, we
may come up with any interpretation we have reason to believe [the
District] would not have rejected.�
Here, we could excise the word �purpose� from the Policy so that it
reads: �(3) The conduct has the 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....� However, that does not cure the constitutional
infirmities. A �negative impact� upon the work or academic performance
of another does not necessarily justify restricting First Amendment
freedoms. Rather, under Tinker, student speech must �collide with the
rights of others� to be proscribed, even when the topic of the speech
is controversial subjects. 393 U.S. at 511 (1969). Speech that has a
�negative impact� does not necessarily collide with the rights of
others, and cannot be broadly proscribed....
Moreover, the Policy�s prohibition of speech that �creat[es] an
intimidating, hostile or offensive work or educational environment�
sweeps within it significant protected speech. For example,
Plaintiff�s protected speech in his speech class was offensive to some
of his classmates and thus could be prohibited by the Policy. The
DeJohn court concluded almost identical language could not be
narrowed. 537 F.3d at 320 (�It is difficult to cabin this phrase,
which could encompass any speech that might simply be offensive to a
listener, or a group of listeners, believing that they are being
subjected to or surrounded by hostility.�).....
The Policy does contain a paragraph that somewhat limits its reach.
However it is not sufficient to render the Policy constitutional. That
paragraph states:
The Board of Trustees reaffirms its commitment to academic freedom,
but recognizes that academic freedom does not allow sexual
harassment. The discussion of sexual ideas, taboos, behavior or
language which is an intrinsic part of the course content shall in
no event constitute sexual harassment. It is recognized that an
essential function of education is a probing of received opinions
and an exploration of ideas which may cause some students
discomfort. It is further recognized that academic freedom insures
the faculty's right to teach and the student's right to learn.
Even when the Policy is considered in light of this paragraph, the
Policy reaches speech unrelated to a class, such as discussions in any
public and common areas at LACC. Even speech related to a class can be
restricted by the Policy if the speech is not an intrinsic part of the
course content. Thus, the Policy is not sufficiently narrowed by this
paragraph.
Plaintiff is likely to succeed on the merits, for the reasons
discussed above. He, and other individuals subject to the Policy, face
irreparable injury because �[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.� The balance of hardships favors granting the
injunction because Plaintiff and other individuals subject to the
Policy face the deprivation of their constitutional liberties, whereas
Defendants are merely enjoined from enforcing the likely
unconstitutionally overbroad Policy. Finally, the public interest
favors the injunction because there is a significant public interest
in upholding First Amendment rights. We recognize that the public also
has an interest in prohibiting sexual harassment on the District�s
campuses. However, a properly-drafted statute could achieve that end
without running afoul of the First Amendment.
([4]Hide much of the opinion.)
References
1. http://www.volokh.com/posts/1234851253.shtml
2. http://volokh.com/files/lopezpi.pdf
3. file://localhost/var/www/powerblogs/volokh/posts/1247685307.html
4. file://localhost/var/www/powerblogs/volokh/posts/1247685307.html
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