Court strikes down George Mason’s student code prohibiting ‘distressing’ speech



A federal district court has struck down a student conduct policy that allows a Virginia university to punish students for speech that causes distress or emotional discomfort.

The U.S. District Court for the Eastern District of Virginia ruled against a George Mason University speech code, arguing the policy was overbroad and would allow the university to punish students for speech that is offensive or disagreeable.

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Under student conduct policy 2013.9.B, which has now been changed, the university identified a true threat, in part, as communicating “in a manner likely to cause causes [sic] injury, distress, or emotional or physical discomfort.”

A former George Mason student filed a lawsuit after he was expelled from the university in December 2014 for violating two student conduct regulations. In particular, the university found the unnamed former student to be in violation of policies relating to threats and sexual misconduct.

The suit claims the university deprived “John Doe” of his rights without due process and violated his free speech rights. In the opinion, authored by U.S. District Judge T.S. Ellis III, the court granted summary judgment to the student in both claims.

School officials found John Doe violated a student policy against threats when he sent a text message to his former girlfriend saying he would buy a gun and shoot himself in the chest if she did not respond, according to the opinion.

In the opinion, released last week, Ellis wrote that although the first part of policy 2013.9 prohibits true threats — which are not protected by the First Amendment — the second part of the policy could block speech that is merely disagreeable or offensive, and thus constitutionally protected. That part of the policy does not include a “reasonable person” limitation — meaning a reasonable person must find the speech threatening — and uses vague terms such as “distress” and emotional discomfort to describe speech that could be prohibited.

Ellis wrote that the school’s policy is so broad that it would allow the university to punish a student for racist comments found offensive by another student. Brent Ericson, an assistant dean of students and director of the Office of Student Conduct, had said in a deposition that a student who says that African-Americans should not be allowed to enroll at the university could be punished under the code if an African-American student is distressed by the comments.

“Yet, it is well established that racist speech, even on a university campus, is constitutionally protected,” Ellis wrote.

Ellis cites the U.S. Fourth Circuit Court of Appeals case Iota XI Chapter Of Sigma Chi Fraternity v. George Mason University, in which the appeals court ruled that while a university has an interest in providing “an educational environment free of discrimination and racism,” they should do so without silencing viewpoint-based speech.

In the landmark 1969 U.S. Supreme Court case Tinker v. Des Moines Independent Community School District, the Court ruled that student speech must “materially and substantially interfere” with a school’s educational operation if it is to be censored.

George Mason’s defense argued that the student conduct policy was justified under the Tinker standard.

But the Tinker case applied to K-12 schools and Ellis wrote that there are “many differences” betweens colleges and public secondary schools and elementary schools.

“In short, controversial and sometimes offensive ideas and viewpoints are central to the educational mission of universities,” Ellis wrote, summarizing the Fourth Circuit case Kim v. Coppin State College. “It follows that university students cannot thrive without a certain thickness of skin that allows them to engage with expressions that might cause ‘distress’ or ‘discomfort,’ which is precisely the type of speech that Code 2013.9B seeks to suppress.”

The opinion states that a similar policy was already deemed unconstitutional in McCauley v. University of the Virgin Islands, a case decided by the Court of Appeals for the Third Circuit in 2010. In the case, the Third Circuit found the university’s speech code, which restricts speech that may “frighten, demean, degrade, or disgrace,” was overbroad and covered much more speech than necessary to cause a threat.

Similar to University of the Virgin Islands’ policy, George Mason’s policy uses subjective terms and covers all speech, Ellis wrote — something that would cause students to speak less for fear of violating the policy. The plaintiff’s text message, Ellis wrote, was not classified as a true threat because it did not aim to harm somebody else or to cause a panic.

School administrators also argued the threat of suicide required the university to take action due to its responsibility to the safety and well-being of students. However, the judge found that the discipline was based on the distress caused to the recipient of the message, not on Doe’s intent to harm himself.

The judge directed the university and John Doe to find a “proper remedy” to resolve the case.

Tagged: George Mason University, recent-news, speech codes