Free Speech Litigation Against Public Colleges – You Can Win

©2014 Kenneth N. Margolin

If you are a student at a public university whose rights to free expression have been violated, you may well be able to file a lawsuit against your school – a lawsuit that would stand a good chance of success. This article will give a flavor of what a free speech lawsuit against a public college might look like. The exact nature of a lawsuit will vary, depending upon the facts of the specific free speech violation. For the purpose of this article, we will assume that a student has actually been disciplined for engaging in speech that is protected by the First Amendment to the United States Constitution, which fully applies to public colleges. Protected "speech" includes the written word, as well as actions designed to convey a message – for example, students lying prostrate on campus grounds with crosses on their chests, as an anti-war protest.

Assume that on the campus of ABC State University, a group of religious male students stand in the center of campus, in front of the student center, but not blocking anyone's way, with large placards reading, "ABC STATE FEMALE STUDENTS WHO HAVE ABORTIONS ARE MURDERERS." The Dean of feminist studies is outraged. She, along with twenty female students, file sexual harassment charges against the men, claiming that the placards are demeaning, insulting and intimidating, and interfere with their access to education and their enjoyment of campus life. They charge that the placards violate Code of Conduct provisions requiring all students to "respect" other students, and to refrain from any "disparagement" of any student, or language which "demeans" any other student based on race, gender, religion, disability, age, ethnicity, or sexual orientation. The Dean of student life agrees, and immediately orders the students to stop showing the placards on campus. A disciplinary hearing is scheduled – the students are informed that if they are found to have committed sexual harassment, penalties could range from gender tolerance counseling, to suspension for the remainder of the semester.

The male students in the above scenario can and should sue the college for violating their rights to free speech under the First Amendment. Their placards express an opinion on a topic – abortion – of great public interest and importance. Such political or policy expression is entitled to the highest level of First Amendment protection. What would a lawsuit against the college look like? The litigation would begin with a Complaint, which is a document that tells the students' story and sets forth their legal claims. The Complaint is filed in court, then served on the defendants. While state courts, as well as federal courts, must apply the federal constitution, most free speech lawsuits are filed in federal court. The plaintiffs would be the students whose free speech rights the college was attempting to suppress. The defendants would be the college itself, and, since the right to free expression on public college campuses is, by now, "settled law," the college administrators who interfered with the students' free speech. After the Complaint was served upon the defendants, they would file their response, the "Answer," in court. The lawsuit would be brought under statutes, such as 42 U.S.C. §1983, which allow the courts to award monetary damages and issue injunctions, for alleged violations of federal law, including the federal Constitution.

In addition to seeking an injunction, preventing the school from enforcing its speech code and banning their placards, the male students would seek monetary damages for violation of their constitutional rights, plus costs and attorney fees. The college might attempt to justify its speech code by claiming it is necessary to make women feel safe on campus. In a case such as the one described, it is likely that after some routine discovery – requests by each side to obtain information by the other – the court would decide the case on the parties' motions for summary judgment. In other words, given that few, if any, relevant facts would be disputed, and the only question would be proper application of the law to the facts, a trial to determine which party prevailed would be unnecessary. After the submission of briefs, and oral arguments by counsel, the court would render its decision. Assuming that the plaintiffs won, there might then be a trial before the judge or a jury, to determine the amount of damages, and a hearing at which the court would determine costs and fees.

The male students in this hypothetical case – one not so hypothetical, as many public colleges have speech codes similar to that ABC State University – would almost certainly win at summary judgment if the case had not settled before then. Nearly all lawsuits against public colleges alleging violations of free speech, have been won by the plaintiffs. More need to be brought, in order to minimize collegiate repression of free speech. Given the right set of facts, it is likely that the student or students filing suit would never have to pay their attorney out of their own pockets, as their lawyer would be paid either out of a settlement, or by court-ordered attorneys' fees.

Any public college student who believes that his or her free speech rights are being violated, should contact experienced counsel, and strongly consider suing their school. They would be pursuing justice on their own behalf, and on behalf of tens of thousands of others.