Jason Willick of the Stanford Political Journal has a well-considered post criticizing Stanford’s recent suspension of a fraternity’s housing ‘privileges’ over an evening of patently offensive, misogynistic jokes. 1 Willick’s criticism effortlessly weaves themes of free speech, from the evolution of speech codes to Charlie Hebdo. You should read it.
Were Stanford a public university, its suspension of the fraternity’s housing privileges would likely violate the First Amendment: uncouth, cringeworthy jokes do not fall within any exception to the First Amendment. But Stanford is a private institution and a private institution can dictate what is acceptable discourse.
Except in California. And definitely not when you’re Leland Stanford Junior University. Because when you’re Stanford, a California judge has already explained this to you.
As Willick rightly notes, California’s “Leonard Law” prohibits private colleges and universities from acts which, if taken by a public institution, would infringe upon a student’s First Amendment rights. California Education Code Section 94367(a) reads:
(a) No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.
The statute proceeds to authorize students subject to such a rule to seek declaratory and injunctive relief, and gives a court discretion to award attorney’s fees to a prevailing party. 2 Institutions controlled by religious organizations are generally exempt, and there are some throw-away subsections apparently designed to assure legislators (or voters) that the statute isn’t intended to authorize speech which can’t be proscribed consistent with the First Amendment.
This is not the first time Stanford has encountered the Leonard Law. In fact, Stanford is the only institution (to my knowledge) to have been successfully sued under the law. 3
Sometime around 1990, Stanford enacted a speech code which included the following:
Prohibited harassment includes discriminatory intimidation by threats of violence, and also includes personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.
Speech or other expression constitutes harassment by personal vilification if it:
a) is intended to insult or stigmatize an individual or a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and
b) is addressed directly to the individual or individuals whom it insults or stigmatizes; and
c) makes use of insulting or “fighting” words or non-verbal symbols.
This regulation of speech proscribed some speech not protected by the First Amendment (e.g., true threats and fighting words) while also prohibiting some protected speech (e.g., insulting language.) It also ran afoul of R.A.V. v. St. Paul in that it prohibited some unprotected speech, but only on the basis of its content. For example, Stanford’s policy would prohibit a true threat made on the basis of race, but not a true threat made on the basis of, say, hatred of fans of a particular sports team.
Several law students and graduates of Stanford filed a lawsuit seeking injunctive and declaratory relief — and won. Stanford argued unsuccessfully that the First Amendment actually forbids the Leonard Law because it infringes on the private university’s right to freedom of association and, in any event, the speech code did not chill student speech. The trial court disagreed, finding that Stanford’s policy, subjected to a First Amendment analysis, was overbroad in that it regulated more than pure fighting words, and that the law did not offend Stanford’s own First Amendment rights.
It’s hard to say whether the Leonard Law has been successful in deterring private colleges from instituting speech codes. There are few records of the policies imposed by private California institutions before its passage and few cases have ever been filed to enforce the Leonard Law. Stanford opted not to appeal the Corry decision, so that case is limited to Stanford. That said, my cursory review of private institutions’ public, written policies has revealed very few codes which would offend the First Amendment. My alma mater is the most glaring exception.
But the Leonard Law was written for a problem different than the one faced at Stanford and elsewhere today. While speech codes are certainly still at the forefront of censorious conduct in higher education, administrators are just as (if not more) likely to impose ad-hoc or unwritten rules that might make requirements other than ‘discipline.’ In other words, Stanford, unable to impose a written policy that would expel students for offensive speech, instead limits “privileges” based on an apparently unwritten policy.
Let’s look at the language of the Leonard Law and examine what it might leave unprotected.
No private postsecondary educational institution
Is the Leonard Law limited to the institution, or does it include independent bodies which act on behalf of the institution? The clearest example (although there may be others I have not considered) would be student governments, inter-fraternal councils, and bodies which operate student media outlets. Leaving aside the question of whether it would constitute a “disciplinary sanction” (addressed below), could a student government dictate that the student newspaper only publish positive articles about the college or about the student government? Although student governments at public universities are bound by the First Amendment, many private student governments are separately incorporated entities. Are they included within the meaning of the Leonard Law?
shall make or enforce a rule
What is a rule? Can a rule be a spoken or written directive which applies only to a particular student, or is it limited to a written policy applicable to students (or groups of students) generally? The words “make or enforce” can’t be meaningless, suggesting that a ‘rule’ which is enforced might be distinct from a rule which is simply made (i.e., written). In Stanford’s case, is the rule written? It certainly seems to be enforced. This is vague, but not terrible.
subjecting a student to disciplinary sanctions
What are disciplinary sanctions? This would seem to suggest that the law prohibits what we traditionally recognize as ‘sanctions': expulsion, suspension, being censured, and so forth. But is it a “disciplinary sanction” to suspend a student organization because it supports the Democratic and not Republican party? What about refusing to recognize one at all?
Perhaps a plaintiff could argue that sanctions would be the result of not complying with a policy or directive which itself does not otherwise impose ‘disciplinary sanctions.’ For example, let’s say I form an organization advocating for the reform of marijuana laws, the college objects to use of the institution’s name or logo, and I am ordered to cease using it. If I do not comply, I violate a policy which requires me to comply with directives from administrators and can be suspended or expelled. Are those disciplinary sanctions within the meaning of the Leonard Law, or are they too attenuated?
Further, what does “a student” mean? May a college impose sanctions on organizations, but not the individuals that comprise them?
In Stanford’s case, is the loss of on-campus housing for a fraternity — a group — a disciplinary sanction?
solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.
This is the most confounding part of the Leonard Law. By its plain language, one could interpret the statute as protecting students from discipline only when an institution attempts to discipline them for speech which actually occurred outside the context of the institution. That, however, would clearly ignore the legislative intent, which was to eliminate speech codes, which (generally) do not differentiate between on-campus and off-campus speech. Rather, the statute has been interpreted to apply to student speech generally, regardless of its location.
That raises still more questions. Are private institutions held to the same standard as public colleges? Or does the Leonard Law protect speech to a greater extent than at public institutions? The statute’s language would seem to say that where the speech is off-campus, a private institution is limited to what the government could restrict. I suspect the answer would be that, indeed, the private institution is limited to the power of the government when the government has established or is acting as a college. The differences may ultimately be negligible, but the statute could certainly be clearer.
Although I may be overly critical here, and many of the above questions might be answered by reference to the legislative history, the Leonard Law should be revisited and amended. There are certainly viable arguments that a private institution’s First Amendment rights to freedom of association should be respected and incorporated, perhaps allowing institutions to opt out if they do so clearly and prospective students are given the opportunity to take their tuition elsewhere. But where we choose to protect student speech, we should go all the way.
In my next post on the Leonard Law, I’ll start tossing about ideas on how to revise it. Please feel free to contribute your own.
- Stanford’s press release — which Willick rightly notes “presents the facts in the light most favorable” to Stanford — also chalks up its actions to a few other concerns, including reports of women being drugged, but concedes that these reports “could not be substantiated.” ↩
- Although the statute allows for fee awards to a “prevailing plaintiff,” California permits fee awards to a prevailing defendant even if the statute says otherwise. ↩
- Occidental College was also sued, but that action was dismissed because the plaintiff had left the college and the statute at the time limited the universe of potential plaintiffs to current students. It has since been amended. ↩