Amicus Brief: Speech First v. McCall

Speech codes are commonplace at public universities. Typically found in bans on “discriminatory harassment,” these policies impose content- and viewpoint-based restrictions that are overbroad and unconstitutional. Challenging them is more important than ever, because the Biden administration plans to introduce new Title IX regulations that require universities to adopt overbroad policies on sexual harassment.

Texas State University has long had a discriminatory harassment policy that punishes students for protected speech. The University’s original harassment policy disciplined students for “unwelcome verbal, written, graphic, or physical conduct” that: (a) “is directed at an individual or group of individuals because of their race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity, or gender expression”; and (b) “is sufficiently severe or pervasive so as to interfere with an individual’s employment, education, academic environment, or participation in institution programs or activities; and creates a working, learning, program, or activity environment that a reasonable person would find intimidating, offensive, or hostile.” This policy departs from the Supreme Court’s speech-protective definition of harassment in Davis v. Monroe County Board of Education (1999).

In April 2023, Speech First sued to challenge the harassment policy under the First Amendment. What happened next was strange. At the hearing, the district judge said the harassment policy clearly violated the First Amendment because it departs from Davis. But rather than issue a preliminary injunction, the court gave the University a month to amend it, which the University did two days before the next scheduled hearing. Its new policy tracks the Davis standard when the victim is another student, but departs from thatstandard when the victim is an employee (e.g., a professor).

At the next hearing, Speech First stressed that it still wanted a preliminary injunction against the original policy. The University’s changes did not moot the original motion, Speech First explained, because the University could go back to them at any time or interpret the new policies, which themselves weren’t clearly valid, in the same way. The district court declined to rule on the original harassment policy, deeming Speech First’s challenge moot because the University “gave no indication they intend to go back to the former policy.” As to the updated harassment policy, the court concluded that it was not overbroad because it “mirrors the Davis standard, requiring the conduct be so severe, pervasive, and objectively offensive as to deny the student equal access to education.”

Now on appeal to the Fifth Circuit, MI has joined ADF on an amicus brief that presents examples of how university policies chill speech on campus and makes the larger point that the suppression of academic speech has been a steppingstone of totalitarian regimes. American higher education of late has been quick to restrict, investigate, and punish speech that some deem undesirable. Such policies not only harm these institutions’ educational mission, but are dangerous for our society.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Photo: wildpixel/iStock