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Well, that didn't take long. In an unfortunate but not unexpected development, universities have already begun misguided attempts to exploit the Supreme Court's recent in Christian Legal Society v. Martinez by citing it out of context to justify their unconstitutional speech codes.

In a filing with the United States Court of Appeals for the Ninth Circuit last Thursday, attorneys representing the Los Angeles Community College District (LACCD) in the case of Lopez v. Candaele cited Martinez for the broad proposition that courts must "defer to decisions of educational
administrators, even in the free speech context and even in higher education." But, contrary to the LACCD's attempt to broaden Martinez's holding, the Supreme Court held only that public universities do not violate students' freedom of association when they require official student organizations to accept all students as voting members and leaders. This disingenuous attempt to import the language of Martinez into a speech code case misconstrues the subtleties of Martinez and has the potential to erode well-established First Amendment freedoms if accepted by courts.

In Lopez, LACCD's speech code was challenged by plaintiff Jonathan Lopez after a professor told Lopez to "ask God what your grade is" in response to Lopez's religiously themed speech delivered in a public speaking class. The federal trial court deemed LACCD's speech policies unconstitutional, which prohibited, among other things, "generalized sexist statements" and "actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men." LACCD appealed, and the case is now pending before the Ninth Circuit. FIREfiled an arguing that LACCD's policy restricts protected expression and imports workplace "harassment" standards into a university setting, which demands greater First Amendment safeguards.

The LACCD's submission last week cites Martinez as authority to support the propositions that (1) a university's policy can be viewpoint neutral even if it imposes an incidental burden on certain speakers, and (2) federal courts should give "decent respect" to decisions of educational administrators, even when challenged on First Amendment grounds. But these arguments fundamentally misconstrue Martinez's holding and rationale.

First, the all-comers policy at issue in Martinez (despite the disagreement about the policy's implementation) applied to all student groups in its requirement that they include any members wishing to join or run for an elected position. In its opinion, the Court held only that such an all-comers policy did not violate the First Amendment rights of the Christian Legal Society, which sought to limit voting membership and leadership to those students who actually agreed with the group's core tenets. In sharp contrast, university speech codes like LACCD's target and restrict specific viewpoints as inappropriate. For example, LACCD's ban on remarks insulting to one's gender might chill students' expression of political views about the role of women in the military, or the reason for the differences between boys' and girls' test scores in elementary school. Because of speech codes' encroachment upon protected expression, for more than two decades, federal courts have universally held speech codes to be unconstitutionally viewpoint based.

Even more alarming is LACCD's contention that Martinez implies that greater deference should be given to university decisions, even when they contravene First Amendment values. Citing the majority's claim that the Court was required to give "decent respect" to educational policy judgments in the context of determining whether the university's policy goals in setting up registered student organizations were reasonable, attorneys for LACCD now argue that the Court has somehow "charged federal courts to defer to decisions of educational administrators, even in the free speech context and even in higher education." In fact, the opposite is true: The majority opinion in Martinez held that "[t]his Court is the final arbiter of the question whether a public university has exceeded constitutional constraints, and we owe no deference to universities when we consider that question." (Emphasis added.)

Further, there is no "reasonableness" inquiry when determining whether a speech code violates the Constitution. In Martinez, the Court held that the student organization recognition structure comprised a limited public forum, where speech restrictions must be "reasonable" in light of the purpose of the forum and viewpoint neutral. In contrast, the university campus as a whole, to which a speech code like the one at issue in Lopez applies, is not a limited public forum, and much greater speech protections apply. "Decent respect" for the reasonableness of educational policy judgments would not permit an educational policy that flatly violates the Constitution, like a viewpoint-based speech code, to pass muster.

FIRE strongly cautions university attorneys against invoking the language of Martinez, which governed a narrow, specific set of circumstances, when assessing the constitutionality of their speech codes. Universities must not opportunistically capitalize on some of the nebulous language in Martinez to bolster their ability to restrict speech.