Eleventh Circuit Strikes Down Univ. of Central Florida’s “Discriminatory Harassment” Speech Code

A portion of today’s Eleventh Circuit ruling in Speech First, Inc. v. Cartwright This was written by Judge Kevin Newsom, and is accompanied by Judge Stanley Marcus (District Judge Richard Story), who I find to be quite correct.

[In]How to determine the appropriateness of injunctive relief[, we consider, among other things, whether plaintiff has shown a] substantial likelihood of success on the merits ….

The discriminatory-harassment policy is almost certainly unconstitutionally overbroad…. [T](1) The policy bans many “verbal,” physical, electronic and other expressions concerning any (depending how you count them) 25 or more characteristics. (2) Says that the prohibited speech may take several forms including verbal acts and name-calling. could It is humiliating.” (3) A gestaltish approach, called “totality in known circumstances”, determines whether certain speech alters another student’s education experience. (4) This includes the student’s “own speech” as well her “encouraging”, “condoning,” and “failing” to intercede to prevent another student from speaking.

The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. Just to name a few, the policy prohibits “verbal and physical conduct” that is “racially, ethnically, religiously or otherwise based. [or]Non-religion, “sex” and “political alignment.” Speech First’s members claim that abortion is wrong, that government shouldn’t be able force religions to recognise marriages they don’t agree with and that affirmative action is unfair. They also believe that a man cannot marry a woman if he “feels” like one. And that illegal immigration can cause serious harm.

These types of statements have merits and drawbacks, but they appear to be “core political speech” with which the First Amendment protects “at its zenith.” Because the discriminatory-harassment policy restricts political advocacy and covers substantially more speech than the First Amendment permits, it is fatally overbroad….

The University’s policy isn’t just overbroad, it’s also an impermissible content- and viewpoint-based speech restriction—or, at the very least, likely so…. It is content-based because the University must “examine the content of the message that is conveyed to determine whether” it harasses another student “based upon” any of a long list of characteristics—e.g., race, sex, political affiliation, etc. The policy must be subject to strict scrutiny because it is content-based. We doubt that it can.

Although it may be in the best interests of its students to prevent them from disrupting its education environment, their policy does not seem narrowly focused. The policy, which covers speech that refers to any one of several characteristics and can take many forms, including “verbal acts”, “written statements” or “other conduct.” could be humiliating”), and that is deemed, by reference to a non-exhaustive seven-factor test, to “unreasonably … alter” another student’s educational experience—and, indeed, to the acts of “condoning or encouraging,” or even “failing to intervene” to stop another from speaking. With respect, this is not narrow tailoring.

In any event, the discriminatory-harassment policy likely goes beyond content-discrimination to discriminate on the basis of viewpoint. UCF bans harassing speech even within its category. Only Speech that is discriminatory The Supreme Court made a recent observation regarding similarly loaded terms within one of the Lanham Act trademark registration provisions. It found it impermissible viewpoint-based.[t]He means[] of” the word “discriminatory” is “not mysterious”—it connotes speech that denigrates rather than validates certain characteristics. This is the “resort-to” category. [the]”dictionaries” confirms this commonsense conclusion. See, e.g., DiscriminatoryOxford English Dictionary Online Edition. “That does not treat a person/group in a fair or degrading manner .”). In prohibiting only one perspective, UCF targets “particular views taken by” students, and thereby chooses winners and losers in the marketplace of ideas—which it may not do.

{The University wants to benefit from the deferential First Amendment standard outlined in Tinker v. Des Moines Independent Child School District(1969) as well as its progeny. In particular, the University asserts that its discriminatory-harassment policy complies with Tinker because it prevents campus disruption. It was also relied upon by the district court. Tinker‘s indulgent framework.

Three problems exist. It’s unclear that it is possible to do so. Tinker‘s more lenient standard applies in the university—as opposed to the elementary- and secondary-school—setting. This caselaw is mixed. One, the Court applied. Tinker A college student challenged speech regulations and claimed that college’s antistalking policy was unconstitutionally broadened and vague. Doe v. Valencia Coll. (11th Cir. 2018). The Supreme Court was once mentioned Tinker for the proposition that state universities have an “undoubted prerogative to enforce reasonable rules governing student conduct”—even while reaffirming that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Papish v. Bd. of Curators of Univ. Missouri (1973). On the other hand, the Supreme Court has emphasized that its “precedents … leave no room for the view that, because of the acknowledged need for order [in state educational institutions,]”First Amendment protections on colleges campuses should be less severe than those in the wider community,” Healy, v. James(1972), further stating that academic freedom within a university environment is “a special concern under the First Amendment,” which doesn’t tolerate laws that place a pall over the classroom,” as well that universities “precisely the marketplace for ideas.” The dangers associated with viewpoint discrimination have been highlighted in the same manner. heightened “In the university setting.” Gay Lesbian Bisexual All. Pryor (11th Cir. 1997).

Separately, Second, the Supreme Court was recently restricted TinkerEven in high school, the application was accepted. They ruled that the school must “remain more cautious about its efforts to regulate off campus speech”, and that it “should be less suspicious of schools trying to do so.”[w]The school must justify its intervention if it concerns political or religious speech outside of school. Mahanoy Regional Sch. Dist. v. B.L. (2021). Even if you don’t want to give up, Tinker As a general matter and UCF policy that extends outside the classroom might not be considered a part of this framework.

Let’s not forget its terms. TinkerThe deferential standard does not apply to view-based restrictions such as the ones we are facing here. There was no dispute that the Court stated “[i]In order to allow the State to prohibit a specific expression of opinion in its capacity as school officials, it must show that the action was motivated by more than just a desire to prevent the inconvenience and discomfort that often accompany unpopular views. According to the Supreme Court, regulations based on viewpoint cannot be made by the government even if they are within an otherwise prohibited speech category. Even if UCF (per TinkerIf the University wanted to restrict harassing speech that causes disruptions in school activities, it could’t. It couldn’t, as it has done here, because of the speech. Put simply, the University can’t pick and choose which types of disruptive speech to prohibit.}

Free speech is more valuable than anywhere else, especially in the top institutions of higher education. Colleges and universities serve as the founts of—and the testing grounds for—new ideas. They are responsible for preparing students to critically examine arguments and to, possibly even more important, prepare them to be citizens of the democratic republic. The Supreme Court recognizes that universities are a unique place in the constitutional heritage, due to their important role and expansive freedoms of thought and speech, it is not surprising. It is crucial that universities and colleges adhere to the Constitution when supervising and regulating students’ expression. Despite what we presume to be the very best of intentions, it seems to us substantially likely that the University of Central Florida crossed that line here….

More information about the policy is available here:

[The policy]The prohibition of discriminatory harassment is stated in the following:

DiscriminatOry harassment consists of verbal, physical, electronic or other conduct based upon an individual’s race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex (including pregnancy and parental status, gender identity or expression, or sexual orientation), marital status, physical or mental disability (including learning disabilities, intellectual disabilities, and past or present history of mental illness), political affiliations, veteran’s status (as protected under the Vietnam Era Veterans’ Readjustment Assistant Act), or membership in other protected classes set forth in state or federal law that interferes with that individual’s educational or employment opportunities, participation in a university program or activity, or receipt of legitimately-requested services meeting the description of either Hostile Environment Harassment or Quid Pro Quo Harassment, as defined [below].

There are many types of discriminatory harassment, such as verbal and written acts.

This policy then defines Harassment in a Hostile Environment as:

When viewed both from a subjective as objective perspective, discriminatory harassment is one that is so serious or persistent that it interferes with or deprives or alters terms or conditions of education (e.g. admission, grades, assignments, academic standing, grades); employment (e.g. hiring, advancement, assignment); and participation in university programs or activities (e.g. campus housing).

According to the policy, “[i]To determine whether there is a hostile atmosphere, universities will look at all known factors, not just the ones listed below:

  • Its frequency, nature, and severity.
  • It was physical threatening or not.
  • What the effect was on the mental and emotional health of the complainant;
  • It is possible that the conduct was directed against more than one person.
  • If the misconduct occurred in context of any other discriminatory behavior or misconduct
  • If the behavior unreasonably affected the complainant’s education, work performance, or university activities.
  • If the conduct raises concerns about academic freedom and protected speech.

(2) The definition of “Hostile Environment Harassment”, as stated in the policy, states (1).[a]A hostile environment could be caused by persistent conduct, or even a single and isolated incident that is sufficiently serious.” (2)[t]A more severe conduct will show that there are fewer incidents needed to establish a hostile atmosphere, especially if they are physical.” and (3) an isolated incident is not enough to constitute “Hostile Environment Harassment”

There is one last piece of the discriminatory-harassment puzzle. Referencing the discriminatory-harassment policy, UCF’s Student Handbook states that “[s]”Tudents are not allowed to engage in any prohibited conduct.”[c]promoting or encouraging harmful behaviour as defined [in the discriminatory-harassment policy]During an act of harmful behavior, failing to intervene. …

The case has many other aspects, and I plan to address them individually.