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Campus dissidents win in court while losing

In an important decision last week, a federal court has held that free speech protections won’t excuse acts of harassment. But it also held that a student who has been disciplined can sue the university if the punishment was for expressing political views.

The two parts of the ruling by the 9th U.S. Circuit Court of Appeals cut in opposite directions. The first will encourage administrators; the second will hearten activists. But the more important win is for the activists, who can get a day in court after being disciplined under university procedures that are often opaque.

The case grew out of events that took place in May 2011 at the California State University campus in Fresno. Neil O’Brien had arrived as a student the previous fall and quickly established himself as a campus conservative, organizing a chapter of Young Americans for Liberty and events for the Central Valley Tea Party. In particular, O’Brien became a critic of the Fresno State administration’s attitude toward immigrant and Latino students.

According to O’Brien, whose version of the events was relied on by the court because he was the plaintiff, university administrators had it in for him. One assistant dean, he alleged, wrote to faculty members to ask them to “gather information and complaints against him.”

Matters came to a head when O’Brien read a poem in a supplement to the school newspaper that was published by the university’s Chicano and Latin American Studies department. The poem referred to America as “land of the biggest genocide,” “rapist of the earth” and “land of glorified killers, the eater of souls.”

O’Brien went to the CLS department with his video camera. He entered the open office doors of two professors in succession, demanding that they speak to him about the poem. The professors each refused, and eventually closed their doors. Both filed complaints with campus police.

In a subsequent hearing, the university found that O’Brien had violated a provision of its student honor code that disciplines any conduct that “threatens or endangers the health or safety of any person” by means of “physical abuse, threats, intimidation, harassment, or sexual misconduct.” The university banned O’Brien from coming within 100 feet of the Latin American studies building.

But it also placed O’Brien on disciplinary probation, which barred him from running any campus organization, including Young Americans for Liberty. O’Brien sued, claiming the anti-harassment provision of the campus code was unconstitutional for vagueness and as applied to his conduct.

The 9th Circuit rejected those arguments in an opinion by Clinton appointee, William Fletcher. The court held that the code was less vague than federal anti-harassment laws. And it said that a reasonable person could have found O’Brien’s conduct intimidating.

Yet at the same time, Fletcher gave student activists everywhere a major win. He wrote that O’Brien’s suit against Fresno State for alleged retaliation in violation of his free speech rights could go forward. According to the court, O’Brien alleged facts which, if found true, would show that the administrators targeted him for punishment that would chill free speech by prohibiting leadership of campus organizations.

This means that students at public universities who can credibly suggest they’ve made themselves unpopular with administrators can sue for retaliatory free-speech violations when they’ve been disciplined — even if they’ve actually committed the acts that gave rise to the discipline. That guarantees the students a judicial hearing and discovery of university documents.

The full-dress judicial proceeding is especially valuable in an era where university discipline is frequently based on semi-secret procedures and prevents students from relying on lawyers.

In practice, the decision will encourage universities to act carefully in disciplining students who challenge faculty and administration views. That’s good for free speech and free thought on campus.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.

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