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Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:

The case stems from the 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 injunction, in Lopez v. Candaele, focuses on the policy, not the incident, and concludes that the policy is likely unconstitutional. 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.

Related Posts (on one page):

  1. Further Defense of College Students' First Amendment Rights
  2. Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:
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Further Defense of College Students' First Amendment Rights

-- and rejection of the "must prevent hostile environment harassment" justification for broad campus speech codes -- from Judge George King in Lopez v. Candaele.

The analysis is generally focused on campus speech codes, and distinguishes hostile work environment harassment law generally from similar restrictions emposed on college students. But part of its reasoning can also apply to First Amendment challenges to the application of hostile work environment harassment law to otherwise protected speech:

Defendants quote the Supreme Court’s statement in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), that “since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidently within the reach of a statute directed at conduct rather than speech.” This reliance on R.A.V. misconstrues the context and meaning of the Court’s discussion and mistakes its relevance to this case. In context, the Court was attempting to distinguish between instances where content-based regulation of a subcategory of otherwise proscribable speech is unconstitutional (as in the St. Paul ordinance at issue) from those where “a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech.” The issue before us is whether the Policy, in including expression within the scope of its regulation, unduly reaches a substantial amount of otherwise protected speech. It is no response to assert that a law may regulate a content-based subclass of unprotected speech that is swept up incidentally within the reach of a law targeting conduct rather than speech. Indeed, the Court went on to observe that “[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” Here, the Policy is undeniably aimed at the content of the expression by prohibiting speech involving certain content, i.e., sexist comments, insulting remarks or intrusive comments about one’s gender.

Defendants also cite the Court’s comment that “sexually derogatory ‘fighting words,’ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11 (1991).” They argue that “[t]he [R.A.V.] Court singled out a time-tested definition of sexual harassment as an example of a valid proscription of ‘sexually derogatory fighting words.’” If this argument means that fighting words can be within the cited CFR definition of sexual harassment, it is both correct and irrelevant. Our conclusion is not that the Policy has no valid application. Rather we held that it was unconstitutionally overbroad by sweeping within its reach a substantial amount of protected speech. If, on the other hand, Defendants mean that all speech that offends this definition is necessarily proscribable as sexually derogatory fighting words, then we reject this argument as an unwarranted and unconstitutional enlargement of what constitutes fighting words.

This fits well with the argument about R.A.V. that I've made as to hostile work environment harassment law.

This case stems from the incident in which an L.A. City College speech class professor 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.) The case filed over that became a general challenge to the campus speech code, which the court preliminarily enjoined in July. The decision I link to today rejects the defendants' motion for reconsideration.

Related Posts (on one page):

  1. Further Defense of College Students' First Amendment Rights
  2. Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:
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