Campus Diversity: A Legal Update

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Campus Diversity A Legal Update

• Gerard D. St. Ours
• Associate General Counsel
• The Johns Hopkins University
• October 29, 2008

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Anti-Harassment Polices and Speech

• Example 1 all forms of sexual harassment are
  prohibited, including ... expressive, visual, or
  physical conduct of a sexual or gender-motivated
  nature, when ... (c) such conduct has the purpose
  or effect of unreasonably interfering with an
  individual's work, educational performance, or
  status or (d) such conduct has the purpose or
  effect of creating an intimidating, hostile, or
  offensive environment.

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Anti-Harassment Polices and Speech

• Example 2 For purposes of this policy,
  harassment is defined as (a) any type of
  behavior which is based on gender, . . . race, .
  . . national origin, . . . sexual orientation . .
  . , that (b) is so severe or pervasive that it
  interferes with an individuals work or academic
  performance or creates an intimidating, hostile
  or offensive working or academic environment.

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DeJohn v. Temple University

• First Amendment challenge to Temples sexual
  harassment policy
• DeJohn, a grad student in the Military History
  department, claimed the policy was facially
  overbroad because it inhibited his free
  expression in class concerning women in combat
  and women in the military
• Court agrees with DeJohn and grants injunctive
  relief

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The Overbreadth Doctrine and Temples Policy

• A regulation of speech must be struck down on if
  on its face it covers expression that is
  protected by the Constitution - - that is, it
  must be narrowly drawn so as not to reach
  protected speech
• According to the Court, the Temple policys focus
  on the speakers motivation, coupled with use of
  hostile, offensive, and gender-motivated is
  on its face sufficiently broad and subjective
  as to conceivable cover any gender-motivated
  speech, the content of which offends someone.

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Where is the severity and pervasiveness?

• Answer it is not there, and that, in the eyes
  of the court, made the Temple policy fatally
  flawed Absent any requirement akin to a
  showing of severity or pervasiveness - - that is,
  a requirement that the conduct objectively and
  subjectively creates a hostile environment or
  substantially interferes with an individuals
  work - - the policy provides no shelter for core
  protected speech.

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Cant a university prevent harassment before it
happens?

• Well, of course, but the institutions policy
  should be qualified by the severe and pervasive
  standard
• Private (JHU) vs. Public (Temple)
• Conduct short of legal harassment?
• Training
• Reprimand?
• Context matters workplace, classroom, time,
  place and manner

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Other cases

• College Republicans at San Francisco University
  v. Reed
• On campus Anti-terrorism rally included visual
  displays depicting Hamas and Hezbollah flags on
  butcher paper flags had the word Allah in
  Arabic script at one point, students put the
  paper flags on the ground and stepped on them
  heated argument ensued
• Student code Students are expected to be good
  citizens and to engage in responsible behaviors
  that reflect well upon their university, to be
  civil to one another and to others in the campus
  community . . .

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Other cases

• Student complaint trekking over Allah
  violated student code incitement to violence
  created a hostile environment incivil
• USF hearing panel dismissed the charges
• College Reuplicans still brought suit
• Court does not strike down code provisions that
  are tied to threats/endangerment of health/safety
• However, Court enjoins USF against enforcement of
  the civility provision.
• Cannot prohibit speech merely because it is
  offensive
• University context
• core political expression Expressive conduct
  provoked intense debate and was disrespectful and
  offensive to many but it was these very
  characteristics that were critical to its
  effectiveness.

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Other cases

• Roberts v. Haragan (Tex. Tech Law school case)
• Student wanted to give speech and pass out
  literature expressing his religious and political
  views that homosexuality is a sinful, immoral
  and unhealthy lifestyle.
• Court strikes down speech code and prior
  permission requirements because they were not
  narrowly tailored and were overbroad
• School granted permission, but student sued
  anyway - - Court considered various aspects of
  school policy regarding forum, prior permission,
  etc.

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Policy Language

• A. Conduct that disrupts or interferes with the
  orderly operation of teaching and research, or
  with other lawful or authorized activities.B.
  Conduct that causes, or can be reasonably
  expected to cause, or threatens physical harm to
  a person.C. Physical or verbal threats against
  or intimidation of any person which results in
  limiting her/his full access to all aspects of
  life at the university.D. Conduct or a pattern
  of conduct in which a person approaches or
  pursues another person with intent to place the
  person in fear of physical harm or with intent to
  harass or to intimidate the person.E. Conduct
  that violates the universitys hazing policy, or
  other conduct or a pattern of conduct that
  harasses a person or group.

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A Few More Cases

• Instructors posting of cartoons on office door
  indicating college fired the handicapped and
  depicting administrators as members of the KKK
  was defamatory and not protected speech.
  McBearty v. Ky Community and Tech. College Sys.
• Employees invitation to student to pose for swim
  suit calendar was not sexual harassment and did
  not present grounds for termination. Va. Tech v.
  Queensberry
• Elderly campus residents pattern of asking
  female students out and sending cards and gifts
  does not constitute sexual harassment subjective
  response of students that this was SH fell short
  of reasonable women standard conduct was
  annoying and bothersome but not SH. Godfrey v.
  Princeton Theological Seminary

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DOE Letter on Use of Race in Admissions

• August 28, 2008 DOE Letter OCR lists parameters
  on use of race in admissions
• Use of race must be essential to an institutions
  mission and stated goals 
• The diversity sought by the postsecondary
  institution must be broader than mere racial
  diversity 
• Quotas are impermissible 
• Providing individualized consideration is
  paramount and there must be no undue burden on
  other-race applicants 
• Before using race, there must be serious good
  faith consideration of workable race-neutral
  alternatives and 
• Periodic reviews are necessary and the use of
  race must have a logical end point.

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Review Constitutional and Statutory Limitations

• Equal Protection Clause
• provides that "no State shall deny to any person
  within its jurisdiction the equal protection of
  the laws."
• Title VII
• Prohibits discrimination in employment on the
  basis of race, gender, religion and national
  orgin
• Title VI
• Prohibits discrimination in any program that
  receives federal funds

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Strict Scrutiny and Narrow Tailoring

• It is well established that when the government
  distributes burdens or benefits on the basis of
  individual racial classifications, that action is
  reviewed under strict scrutiny. . . . Racical
  classifications are simply too perniciious to
  permit any but the most exact connection between
  justification and classification. Parents
  Involved in Community Schools v. Seattle School
  District No. 1, 127 S.Ct. 2738, 2751-52 (2007).
• Remedial justification (remedying the effects of
  past intentional discrimination)
• Diversity

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Brief Review of Grutter

• Supreme Court confirms that there is a compelling
  interest in higher education to expose students
  to widely diverse people, culture, ideas and
  viewpoints, and this interest permits
  universities to adopt narrowly tailored race
  conscious programs in admissions.

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Student Admissions

• Programs must be designed to ensure
  individualized review of applicants and their
  diversity attributes, which should include
• Non-mechanical, full-file review of applicants
• Flexible review entailing consideration of all
  pertinent elements of diversity in light of the
  particular qualifications of each applicant, and
  to place them on the same footing for
  consideration, although not necessarily according
  them the same weight and
• Protection against burdens on individuals who do
  not benefit from the race-conscious policies.

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Fisher v. Texas

• Federal court denies request to require UT to
  re-evaluate applicants for admission without
  considering race cites Grutter
• For students who are not admitted under the Texas
  Top 10 law, UT applies a multi-factor scoring
  process students are scored on two essays, and
  based on subjective assessment of several
  factors demonstrated leadership qualities,
  extracurricular activities, honors and awards,
  work experience, community service, and special
  personal circumstances. Sub-factors under
  "special circumstances" socioeconomic status of
  the family and the school, a single-parent home,
  whether languages other than English are spoken
  at home, family responsibilities, and race.
  Readers are trained to review applications under
  consistent guidelines/methodology.

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Q A/Discussion