View Mobile Site
 

Ask the Expert

Signal Photos

 

John Shaffery: Harassment and free speech

It's the Law

Posted: March 13, 2009 1:24 a.m.
Updated: March 13, 2009 4:55 a.m.
 
When a male graduate student pursuing a degree in military history was inclined to speak his mind in classroom discussions about women in combat and women in the military more generally, he felt inhibited by the university's broadly worded policy on sexual harassment.

In pertinent part, the policy stated: "All forms of sexual harassment are prohibited, including ... expressive, visual, or physical conduct of a sexual or gender-motivated nature, when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment."

The student sued the university to prohibit the enforcement of the policy on the ground that it had a chilling effect on the exercise of his right to free speech.

A federal appeals court sided with the graduate student. The sexual harassment policy's prohibition of expressive conduct of a "gender-motivated nature" that had the purpose or effect of either unreasonably interfering with other individuals or creating an intimidating, hostile or offensive environment was unconstitutionally overbroad under the First Amendment. It impermissibly swept within its reach speech that should not be subjected to restrictive regulation.

Regarding the "gender-motivated" characteristic of speech, the court wondered: "Whose gender must serve as the motivation, the speaker's or the listener's? And does it matter? Additionally, we must be aware that ‘gender,' to some people, is a fluid concept. Even if we narrow the term ‘gender-motivated' to ‘because of one's sex,' we are far from certain that this limitation still does not encompass expression on a broad range of social issues."

The term "gender-motivated" also necessarily required an inquiry into the motivation of the speaker, so that the policy punished not only speech that actually caused disruption, but also speech that merely intended to do so.

To protect core forms of speech, there should have been a requirement in the policy that the conduct at issue objectively and subjectively create a hostile environment. A school must show that, before prohibiting it, targeted speech is so severe or pervasive that it will actually cause material disruption, and the university's policy was fatally deficient for not having such a requirement.

It was important to the court's decision that the challenged harassment policy was that of a university, as opposed to an elementary school or a high school. It is well recognized that, in the words of United States Supreme Court decisions,

"The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,'" and "the First Amendment guarantees wide freedom in matters of adult public discourse."

Discussion by adult students in a college classroom should not be restricted, while certain speech which cannot be prohibited to adults may be prohibited to public elementary and high school students.

This is particularly true when considering that public elementary and high school administrators have the unique responsibility to act in the place of parents, a disciplinary and protective role not shared by their counterparts in colleges and universities.

Thus, in the case of the plaintiff graduate student, the court kept in mind that the university's administrators were granted less leeway in regulating student speech than are administrators responsible for younger and more vulnerable students.

John H. Shaffery is a partner with Poole & Shaffery, LLP, a full service business, corporate and employment law firm."It's The Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. His column represents his own views and not necessarily those of The Signal.

Comments

Commenting not available.
Commenting is not available.

 
 

Powered By
Morris Technology
Please wait ...