Student sues school alleging harassment policies have 'chilling effect' on speech





PENNSYLVANIA -- A university student is suing Penn State University to challenge the school's anti-discrimination and harassment policies, which he claims ''suppress the discussion of controversial viewpoints.''

Attorneys from the Alliance Defense Fund filed suit Feb. 22 in the U.S. District Court of the Middle District of Pennsylvania on behalf of Penn State sophomore A.J. Fluehr, alleging that portions of the university's student guide have a chilling effect on his speech, according to the lawsuit.

The Alliance Defense Fund is a non-profit organization based in Scottsdale, Ariz., that advocates for religious liberty and expression.

The lawsuit claims that the university's antidiscrimination and intolerance policies violate the First Amendment by preventing Fluehr from openly expressing his political, cultural and religious opinions.

''Penn State is dictating morality when it shouldn't be, and it goes too far when they start infringing on the First Amendment,'' Fluehr said.

Fluehr and other students were increasingly frustrated by the university's policies, said David French, an Alliance Defense Fund attorney.

''For A.J. and others on campus, if you're going to engage in any speech outside mainstream attitudes, you run severe risks,'' he said.

As part of its antidiscrimination policies, the university sponsors a ''Report Hate'' telephone hotline and a Web form where students can confidentially report acts of intolerance. French said the hotline and Web form are structures that ''vigorously'' enforce'' the school's unconstitutional harassment and intolerance policies.

But Tysen Kendig, a spokesman for Penn State, said the policies primarily target acts of intolerance, not intolerant speech. There is no university policy that infringes on a student's right to free expression, he said.

''Penn State does not have a speech code,'' Kendig said. ''We don't know why someone would claim that we do, let alone file a lawsuit over something that doesn't exist.''

An excerpt from Penn State's policy reads: ''Harassment may include, but is not limited to, verbal or physical attacks, written threats or slurs that relate to a person's membership in a protected class, unwelcome banter, teasing, or jokes that are derogatory, or depict members of a protected class in a stereotypical and demeaning manner, or any other conduct which has the purpose or effect of interfering unreasonably with an individual's work or academic performance or creates an offensive, hostile, or intimidating working or learning environment.''

Fluehr's lawsuit is a ''facial challenge'' to the university's policies, and does not allege that Fluehr was ever punished for his speech, French said.

According to the lawsuit, Fluehr belongs to student organizations that express opinions about gender, race, religion and sexual orientation that may offend other students and be punishable under the university's student policies.

An article in The Collegian, the student-run newspaper at Penn State, said Fluehr is a senator in the Undergraduate Student Government and a member of Young Americans for Freedom, a self-described conservative student group.

''The goal of this lawsuit is to ensure legal equality, and to make sure that even those outside the mainstream enjoy equal participation,'' French said.

Fluehr said the policies are smothering debate on campus. For example, Fluehr said he was interested in passing out copies of the controversial Danish cartoons of the prophet Muhammad and talking about the situation, but did not for fear of violating the school's policies.

''But as a student, you have to think, 'Is it worth the risk of the university punishing you to do this?''' he said.

Ed Rowe, president of Allies, the largest on-campus group for gay, bisexual and transgender students, said he supports the lawsuit's challenge to a portion of the university's policy that relegates outdoor student demonstrations and meetings to 12 specific locations.

But he said he is alarmed by the suit's efforts to strike down intolerance and harassment protections that took decades to include under university policy.

Rowe said he is supportive of the ''marketplace of ideas,'' even ideas he does not agree with. But he said the First Amendment does not protect hate speech and harassment, and Penn State's policies are in place to regulate speech that may harass students.

''I can hold my own against a student who holds out a Bible and questions the 'homosexual lifestyle,''' Rowe said. ''But that's not what it's about. The policies make sure people can't make students' lives a living hell on campus. They truly can't follow students around harassing them.''

If the nondiscrimination and intolerance policies were changed or pared down, Rowe said the campus would become more hostile to gay students and students of color. Any change to the policies would be a ''giant step backwards,'' he said.

Fluehr said harassment would not increase if the policies were thrown out because state laws already prevent ''vicious and horrible'' acts of harassment.

''We've moved away from freedom of speech being the most sacred value,'' Fluehr said. ''Now, not offending someone is more sacred.''

Intolerance and harassment policies that have a chilling effect on student speech are ''unfortunately exceedingly common'' at universities and colleges around the country, French said.

''It's the rule rather than exception,'' he said.

Harassment policies with similar language to Penn State's policies have been struck down in other courts, he said.


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