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Throughout the spring semester, FIREis drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at California Institute of Technology (Caltech), which FIREhas given a red-light rating for maintaining policies that clearly and substantially restrict free expression on campus.

Although Caltech is private, California has a law applying the First Amendment to private, secular colleges and universities. California's "Leonard Law" (California Education Code § 94367, named for its author, former California State Senator Bill Leonard) provides that "No private postsecondary educational institution shall make or enforce any rule subjecting any 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 1 of the California Constitution." It was under the Leonard Law that a California court struck down Stanford University's speech code in 1995. Corry v. Stanford, No. 740309 (Cal. Super. Ct. 1995). Some have criticized the Leonard Law itself as an interference with the right of a private university to define itself by a chosen set of values. After all, if a private university explicitly states that it places other values above the right to free expression, such that anyone deciding to attend or teach gives informed consent to giving up certain rights, FIREbelieves that university is acting within its rights to place restrictions on speech that would otherwise be protected. (This is not to say that FIREbelieves such restrictions are a good thing, just that in certain cases a private university does have the right to make them.) In this case, however, Caltech has made no such express disavowal of student and faculty speech rights, so it should be protecting them, Leonard Law or no Leonard Law. And for better or for worse, the Leonard Law is the law of California, and Caltech is acting in violation of it.

In spite of this, Caltech maintains several policies that prohibit constitutionally protected speech. The first policy we will examine is the Institute Policy on Unlawful Harassment. That policy prohibits any "[a]busive or harassing behavior, verbal or physical, which demeans, intimidates, threatens, or injures another because of his or her personal characteristics or beliefs...." The university may prohibit true intimidation and threats (instances "where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death," Virginia v. Black, 538 U.S. 343 (2003)) and true harassment (conduct so severe, pervasive, and objectively offensive that it effectively denies the victim the ability to benefit from his or her education, Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Beyond that, however, this policy veers into dangerous territory, prohibiting any "abusive" expression that "demeans" or "injures" its listener. Not only are these terms vague and undefined, but there is no exception to the First Amendment for speech that one finds demeaning or somehow injurious. As the U.S. Supreme Court has plainly stated, "[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Street v. New York, 394 U.S. 576, 592 (1969).

The policy gets worse yet when it suggests possible examples of harassment, including "A student tells a racially offensive joke within a study group session with other students." It is virtually impossible to imagine a scenario in which a single joke would rise to the level of severity and pervasiveness necessary to constitute harassment under the law. Beyond the policy's already expansive definition of harassment, this example impermissibly indicates to students and faculty that merely offensive speech is sufficient to constitute harassment at Caltech. The same problem arises with regard to the policy's list of potential examples of potential sexual harassment, including "Making or using derogatory comments, epithets, slurs, or jokes of a sexual nature."

Caltech's Honor Code Handbook has a provision on "Interpersonal Relations" that also infringes on protected speech. One normally thinks of honor codes as addressing academic misconduct, but some universities' honor codes—like Caltech's—address social misconduct as well, and frequently prohibit protected speech in doing so. The section of Caltech's honor code addressing violations based on interpersonal relations provides that

An action that places a demonstrably unreasonable emotional burden on another person invariably results in taking unfair advantage of that person. Actions which harmfully degrade an individual or group, promulgate damaging rumors, or place someone in a situation where he or she feels threatened, harassed, or victimized may unfairly disadvantage members of the community.

Like the harassment policy, this policy is both dangerously vague and overbroad. A regulation is impermissibly vague if it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," Grayned v. City of Rockford, 408 U.S. 104 (1972). A term such as "demonstrably unreasonable emotional burden," which could mean virtually anything, is almost certainly too vague, as is a prohibition on making someone feel "victimized." The prohibition on "victimizing" or "degrading" others also conditions the permissibility of speech on the subjective reaction of the listener, since what might make one person feel victimized or degraded (like an offensive joke) may seem perfectly harmless to another person. Courts have repeatedly struck down college and university speech codes that condition speech on subjective listener reaction. In Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) the U.S. Court of Appeals for the Third Circuit struck down a public high school's anti-harassment policy on First Amendment grounds because it conditioned the permissibility of speech on subjective listener reaction. The court found the policy unconstitutional because it did not "require any threshold showing of severity or pervasiveness," and thus "it could conceivably be applied to cover any speech about some enumerated personal characteristics the content of which offends someone." The court emphasized that "it is certainly not enough that the speech is merely offensive to some listener." See also Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) ("regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings").

The university's Internet acceptable use policy also prohibits protected speech. According to that policy,

Some examples of inappropriate use are: sending a communication or using electronic information resources, including webpages, to discriminate against or illegally harass, defame, offend, or threaten individuals or organizations, or to engage in other illegal conduct or conduct that violates Institute policy. (Emphasis added.)

This is a classic example of an overbroad policy, in that it prohibits both protected and unprotected speech. Most of its proscriptions are legitimate—the university may legitimately prohibit harassment, defamation, and threats. However, the prohibition on the use of electronic information resources to "offend" individuals or organizations encompasses a great deal of expression protected by the First Amendment. Again, speech cannot be prohibited simply because it offends some, most, or even all of its listeners.

Finally, the Caltech Statement of Community poses a threat to Caltech students' right to freedom of conscience—that is, their right to be free from official interference with their thoughts and beliefs. The Statement of Community contains a list of principles important to Caltech as an institution, including "We acknowledge that a multitude of perspectives is essential to all we do. As a community, we understand that civility and mutual respect for diversity of background, race, ethnicity, sex, gender, gender identity, socioeconomic status, religion, nationality, sexual orientation, age, disability, and marital and family status, are critical." It then provides that "All who work, live, study, and teach at Caltech are here by choice; implicit is a respect for these principles which are an integral part of our mission." To be consistent with the First Amendment as required by the Leonard Law, however, Caltech cannot require acceptance of a particular ideology as a condition of membership in the university community. As Justice Robert H. Jackson eloquently wrote on behalf of the Supreme Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." By requiring Caltech students to accept certain values, Caltech is trying to do just that, and it is impermissible.

Stay tuned next week for information on the state of free speech at Stanford University.