Court overrules campus speech code

WASHINGTON, Sept. 5 (UPI) -- A federal court has ordered the president of a state university not to enforce provisions of what the court termed the school's "speech code" on the grounds that its provisions inhibit free expression in ways that do not withstand First Amendment scrutiny.

On Thursday Judge John E. Jones III, of the U.S. District Court for the Middle District of Pennsylvania, enjoined Shippensburg University President Anthony F. Ceddia from enforcing the code's "overbroad" prohibitions against "acts of intolerance," "subordination," speech that "provokes" or "intimidates," and the requirement that everyone on campus must "mirror" the administration's views on "social justice" and "cultural diversity."

Jones let stand two sentences the court found to be "aspirational" rather than operational, and thus not binding on the students. He also denied the university's motion to dismiss the case, allowing it to proceed to trial.

Jones cited Justice Robert Jackson's opinion in the landmark 1943 case of West Virginia Board of Education v. Barnette, which upheld the right of Jehovah's Witnesses schoolchildren not to salute the U.S. flag during World War II:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox in politics, nationalism, religion, or matters of opinion or force citizens to confess by word or act their faith therein."

On April 22 Walter A. Bair, who is entering his senior year at Shippensburg, and Ellen Wray, a recent graduate, challenged the constitutionality of the university's speech policies. Wray said she had been reluctant to discuss certain issues, and both plaintiffs said they were members of student organizations whose tenets might be sanctionable under the code.

The suit was brought by David A. French and William Adair Bonner, attorneys in the Legal Network of FIRE, the Foundation for Individual Rights in Education, a Philadelphia-based campus watchdog group founded in 1999 by University of Pennsylvania historian Alan Charles Kors and Boston civil rights lawyer Harvey A. Silverglate.

"This is a great victory and a vital step in the struggle against the scandal of unconstitutional campus censorship at public colleges and universities," said Thor L. Halvorssen, FIRE's chief executive officer. "FIRE will now seek to make this preliminary injunction permanent."

The court's ruling is not final. Ceddia may appeal Jones' decision to the U.S. Court of Appeals for the Third Circuit, which has jurisdiction over Pennsyalvania and several surrounding states.

"We are confident that our First Amendment position will survive an appeal," said Silverglate, "because the Third Circuit has been a national leader in protecting First Amendment rights from efforts to censor speech in the interests of perceived ideological correctness.

"The fundamentally important message that Judge Jones is sending to the administrators of Shippensburg and, by implication, to other administrators of public universities around the country is that student speech may not be banned because the listener takes offense at what is said or because student speakers wander from an official line," Silverglate said.