Reports of Their Death Are Greatly Exaggerated: How University Speech Codes Resist Court Precedents and Continue

to Shape Speech on American Campuses

Dewayne Wright

Journalism 7025 Professor Grusin April 24, 2010

Wright 1 Reports of Their Death Are Greatly Exaggerated: How University Speech Codes Resist Court Precedents and Continue to Shape Speech on American Campuses

INTRODUCTION During the 1980s and 1990s, colleges and universities throughout the country began to adopt speech codes in an attempt to fight discrimination and harassment on campuses. According to the Foundation for Individual Rights in Education, or FIRE, speech codes are university regulations prohibiting expression that would be constitutionally protected in society at large. n1 According to the First Amendment Center, more than 350 public colleges and universities in the United States were regulating forms of hate speech by 1995. n2 Robert ONeil, in his book Free Speech in the College Community, said that so many higher education institutions adopted speech codes that it must be viewed as one of the most significant developments in American higher education during the final decades of the twentieth century.n3 But why? Why did hundreds of colleges, which traditionally supported the marketplace of ideas, want to restrict expressive speech? This research and literature review will provide a background for the development of speech codes. It will look at Supreme Court decisions that shaped the current test for fighting words, as well as decisions of the Court in hate speech cases. It will also examine federal court rulings in speech code cases. The current policies of representative institutions of the two public higher education systems in the state of Tennessee will be examined to determine if these policies,

Wright 2 if challenged in court, would withstand constitutional scrutiny. Finally, it will look at possible reasons why speech codes continue to be in place at colleges around the country, and present ways current codes may be revised so that they could withstand constitutional scrutiny.

BACKGROUND While the main reason cited by colleges for the establishment of speech codes in the 1980s was a rise in discriminatory speech on campusesn4, there are numerous factors at play. The reality is probably a combination of all of them. Some argue that the 1980s saw an increase in incidents of race- or gender-based harassment as a result of increased minority enrollment in colleges (whether there was an actual increase in incidents, or simply more incidents that were reported is also open to debate).n5 Others cite an increase in political correctness at colleges as administrators wished to increase minority enrollment at their institutions.n6 And others point to colleges afraid of litigation, especially for sexual harassment.n7 Stephen Glaser felt well-meaning administrators who were being pressured by civil rights groups and advocates for political correctness hastily wrote the early codes in an effort to create a more tolerant community and to appease critics.n8 Whatever their intentions, speech codes have not faired well in the courts. While the Supreme Court has not ruled directly on a speech code case, other federal courts have judged them to be unconstitutional under the First Amendment. In fact, a speech code has never been upheld in court. From 1989 (Doe v. University of Michigann9) to 1995 (Corry v. Stanfordn10) and

Wright 3 beyond, federal courts in districts around the country overturned the codes, declaring them overbroad in their sweep of protected speech or vague in their definition of abstract terms such as harassment, sexism and racism.

FIGHTING WORDS Supporters of these codes often base their argument of legality on the U.S. Supreme Courts ruling in Chaplinsky v. New Hampshiren11, which established a category of expression not protected by the First Amendment: fighting words. Proponents argued the speech regulated by the codes is hate speech, which was, in essence, fighting words. But by the time the codes were developed, the Supreme Court had narrowed the definition for fighting words to be words that, when expressed to an individual, are inherently likely to provoke violent reactions. (Cohen v. Californian12) Chaplinsky v. New Hampshire n13 In 1942, the Supreme Court heard arguments regarding a New Hampshire law that banned the use of any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name. Chaplinsky, while speaking on a public sidewalk, attracted a crowd that he had agitated with statements such as all religions are rackets. During the incident, Chaplinsky called a city marshal a damned Fascist and a God damned racketeer. Chaplinsy was charged and convicted under the offensive word statute. He then appealed on the grounds that the state law violated his First and Fourteenth Amendment right to free speech and due process. The Court upheld his conviction on the basis that there are words which by their very utterance inflict injury or tend to incite an immediate breach

Wright 4 of the peace, thereby establishing the fighting words doctrine. In 1951, the Court again upheld a conviction on the basis of fighting words in Feiner v. New Yorkn14. However, this case would mark the last time a regulation would be upheld under the fighting words doctrine. Brandenburg v. Ohion15 In 1969, the Court heard arguments regarding the conviction of a Ku Klux Klan member who was convicted under an Ohio statute for advocating violence at a public rally. The Court overturned the conviction on the grounds that the First Amendment does not allow the mere advocacy of violence to be banned except where it is likely to produce imminent lawless action and have a likelihood of success. No longer were fighting words judged by the broad concepts given in Chaplinsky. With this decision, any violence advocated must be imminent and likely to succeed. Cohen v. Californian16 With 1971s Cohen v. California, the Court finished its narrowing of the fighting words doctrine. Cohen was convicted under a California statute banning offensive conduct (he had wore a jacket with the words Fuck the Draft written on it). The Court overturned Cohens conviction, partially because his fighting words were not directed at an individual and could not be taken as a direct personal insult. The ruling in Cohen additionally narrowed the fighting words doctrine to its current state: fighting words must be directed at a specific individual and must be likely to result in imminent lawless action.

HATE SPEECH

Wright 5 While the U.S. Supreme Court has heard no speech code case, two relevant cases involving hate speech weigh heavily on any interpretation of the codes: R.A.V. v. St. Pauln17 and Virginia v. Blackn18. R.A.V. v. City of St. Paul, Minnesotan19 A local ordinance in St. Paul, Minn., prohibited the placement of a symbol on public or private property which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." A juvenile was charged under the statute for burning a cross on a black familys lawn. The defendant, R.A.V., argued for the charges dismissal on the grounds that the ordinance was facially unconstitutional in that it was overbroad and content-based restriction of speech. The trial court dismissed the charge, but the Minnesota Supreme Court reversed that decision, rejecting the defendants arguments by stating the ordinance had been interpreted as fighting words in other state cases, and that it was not content-based because it was narrowly tailored to serve a substantial state interest. In 1992, the U.S. Supreme Court declared that the ordinance was unconstitutional. The states argument that the ordinance simply proscribed fighting words was rejected because the ordinance banned some fighting words, while allowing others. In explaining the Courts reasoning, Justice Scalia wrote, Although the phrase in the ordinance, arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

Wright 6

The Court concluded its decision by pointing out that St. Paul had other ways to deal with reprehensible conduct such as cross burning, such as criminal trespass laws. Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. In other words, punish the conduct, not the speech. Virginia v. Blackn20 In 2003, the Court ruled on another case involving cross burnings. In two separate state cases, three individuals were convicted under a Virginia law making it illegal for anyone to burn a cross on public or private property with the intent of intimidating any person or group. The law also specified that any cross burning would be prima facie evidence of an intent to intimidate a person or group. The three individuals were convicted under the statute and appealed to the Virginia Supreme Court that the law was unconstitutional under the First Amendment. The state Supreme Court reversed the convictions on the ground that the law was facially unconstitutional in light of the U.S. Supreme Courts ruling in R.A.V. and that the prima facie evidence portion of the statute makes it overbroad in that it chills speech. However, the U.S. Supreme Court did not totally agree. Citing a portion of the R.A.V. decision that it would be constitutional to ban only a particular type of threat, the Court ruled that a state could ban cross burning with the intent of intimidating, the prima facie portion rendered the statute unconstitutional. Again, as in R.A.V., the Court was signaling that the punishment of conduct is the preferred way to deal with hate speech by stating it is acceptable to ban a specific type of threat. In his dissent, Justice Thomas argued that the statute was constitutional because it prohibits only

Wright 7 conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.

SPEECH CODES Almost from their inception, speech codes have been challenged in federal courts and struck down as being unconstitutional due to their overbroad or vague nature. Doe v. University of Michigan n21 The University of Michigan was involved in the earliest federal case regarding a speech code. In 1989, the U.S. District Court for the Eastern District of Michigan determined that the universitys Policy on Discrimination and Discriminatory Harassment of Students in the University Environment violated the First Amendment as both overbroad in that it sweeps too much protected speech under its purvey, and vague in that it was unclear as to what was being proscribed by the policy. In reviewing laws under the Due Process clauses of the Fifth and Fourteenth Amendments, courts ask if a person of ordinary intelligence can determine what conduct is prohibited. (Broadrick v. Oklahoman22) If they cannot, the law is declared to be unconstitutionally vague. Doe, a psychology graduate student at the university challenged the policy because he feared that discussion of theories positing biologically-based differences between the sexes and races would be sanctionable under the policy because the comments may be perceived as sexist or racist by some students.

Wright 8 The district court agreed that the policy violated the First Amendment. While it was applicable to non-protected speech, such as fighting words, it also proscribed protected speech that may be controversial or even offensive. In its decision, the court quotes the U.S. Supreme Courts decision in Street v. New Yorkn23, It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. The decision then states that this principle gains a special significance in the University setting, where the free and unfettered interplay of competing views is essential to the institutions educational mission. UWM Post v. Board of Regents of the University of Wisconsin Systemn24 In 1991, the student newspaper at the University of Wisconsin-Milwaukee, the UWM Post asked the U.S. District Court for the Eastern District of Wisconsin to declare the University of Wisconsins recently adopted discriminatory policy. The court ruled that the policy was overbroad and vague, and therefore unconstitutional. The court, citing a controlling precedent from the U.S. Court of Appeals for the Seventh Circuit, which includes Wisconsin, that said any restricting speech controls are appropriate only for content-neutral speech regulation. The Court sometimes balances the value of speech against the costs of its restriction, but it does this by category of speech and not by the content of particular works.n25 The university policy regulated speech based on its content. While the university argued that numerous U.S. Supreme Court rulings permitted schools to control the activities of students which interfere with another students opportunity to obtain an education (see Tinker v. Des Moines Independent School Districtn26; Healy v. Jamesn27; and Widmar v. Vincentn28), the court said those cases all involved time, place, and manner restrictions, not content-based restrictions.

Wright 9 In the section of its ruling dealing with the overbreadth claim by the UWM Post, the court addressed an important evolution of speech codes. The university stated argued that the policy is constitutional under the Title VII law because the prohibition of speech which creates a hostile environment has parallels in an employment setting and, as determined in Meritor Savings Bank v. Vinsonn29, an employer is responsible to take corrective action when it learns of illegal harassment. The court pointed out problems with this argument. It said that Meritor only applied to the workplace, not to a school setting. Also, even if Title VII did cover educational settings, Meritor would not apply because students are not agents of the school. The court agreed with the UWM Posts claim the policy was unduly vague in that it was ambiguous if the restricted speech must actually demean the listener and create an intimidating, hostile or demeaning environment for education or whether the speaker must merely intend to demean the listener and create such an environment. The policy itself suggested the speech must actually demean and create a hostile environment, but the examples of types of restricted speech included in the policy suggested there was no need to prove the speech had any actual effect on the listener. Dambrot v. Central Michigan Universityn30 In 1993 a basketball coach was disciplined under Central Michigan Universitys Discriminatory Harassment Policy. Dambrot, the coach, had addressed several players, both black and white, and an assistant coach using the word nigger. The coach said he was using the word in a positive and reinforcing manner in a closed-door team session. The black members of the team informed the universitys athletic director that they werent offended, but reports of the incident came to the knowledge of universitys affirmative action officer, who said Dambrot had run afoul of the harassment policy. After a student demonstration was held after the incident

Wright 10 became common knowledge among the campus community, Dambrot was told his contract with the university would not be renewed. He sued the school, claiming that his dismissal because of his use of the word nigger violated his First Amendment right of free speech. While the U.S. District Court for the Eastern District of Michigan (the same district that had decided Doe v. University of Michigann31 four years earlier) ruled against Dambrot with regards to wrongful termination, it enjoined the university from enforcing its harassment policy on the ground that it is facially unconstitutional, writing that protected speech can be effectively suppressed by the policy. The court even declared that the policy instituted by CMU is even more overbroad than the U of M policy struck down in Doe. Corry v. Stanford n32 While a state court case, Corry v. Stanford extended the legal reasoning against speech codes to private universities. A total of ten students at Stanford argued that the universitys speech code violated Californias Leonard Law which extended First Amendment protections to all of the states secular private colleges (religiously affiliated schools were exempt). The university argued that its code only restricted fighting words under Chaplinsky and that the Leonard Law violated their First Amendment rights and was itself unconstitutional. The Santa Clara, California, Superior Court rejected the fighting words defense and ruled the speech code unconstitutional. Relying heavily on R.A.V., the court said the code prohibits speech base don the content of the underlying expression and is not directed at conduct. Like the failed St. Paul ordinance, it punished only those who expressed views on disfavored subjects like race and gender, while permitting fighting words that dont address these topics. The court also ruled that Leonard Law was constitutional because it did not restrict the universitys speech as a corporate body and expanded free speech protections of students of private institutions.

Wright 11 Roberts v. Haragan n33 In 2004, a student at the Texas Tech University Law School, sued the university, claiming the universitys speech code was unconstitutional. Roberts, the student, wanted to speak and distribute literature on campus to express his belief that homosexuality is a sinful, immoral, and unhealthy lifestyle. He was initially denied his request to conduct his expressive activity outside of the universitys designated free speech area (a 20-foot gazebo on a campus of 28,000 students). The U.S. District Court for the Northern District of Texas struck down the code, which included restricting free expression to. The court determined the policy was unconstitutional because of the extent it regulates the content of student speech in areas of the campus that are public forums, either by tradition or designation as well as that it placed content-based restrictions on speech. The court enjoined the university from enforcing its policies, along with interpreting the free speech area to include park areas, sidewalks, streets, or other similar common areas irrespective of whether the University has so designated them or not. DeJohn v. Temple University n34 DeJohn is the case that has been heard at the highest level, the U.S. Court of Appeal for the Third District. DeJohn sued Temple University with multiple complaints ranging from unfair treatment in the review of his graduate thesis to violation of his First Amendment rights under the schools discriminatory policies. While the complaints involving his thesis were dismissed, the First Amendment complaints proceeded. DeJohn felt that the policy had a chilling effect on his speech. During the case, the university revised its policy and asked the court for summary dismissal of the remaining complaints as it was now a moot issue. The court denied this, concluding there was then nothing to prevent the university from simply revising their policy to its previous form once the complaints were dismissed.

Wright 12 The result of the case was that the university was permanently enjoined from restoring or enforcing its previous code.

Lopez v. Candaele n35 The most recent case involving speech codes was heard by the U.S. District Court for the Central District of California. Lopez, a student at the college, gave a speech as part of a class assignment, which involved his Christian faith and expressed his belief that same-sex marriage was wrong. The classs professor ended the presentation mid-speech, called Lopez a fascist bastard in front of the class, and refused to grade the speech, writing Ask God what your grade is on the assignments evaluation form. Lopez sued the college, challenging the colleges speech code as facially unconstitutional. The court issued a motion prohibiting the Los Angeles Community College District from enforcing its code., saying that it restricts too much protected free speech, including constitutionally protected free speech that is merely offensive to some listeners. The college asked the court to reconsider its motion, which was denied. The college attempted to argue that the language of the policy the court had struck down came directly from Equal Employment Opportunity Commission statutes prohibiting workplace harassment. And similar to the ruling in UWM Post n36, the court rejected this argument, stating that college students have broader First Amendment rights than employees in the workplace and that the fact that restrictions may be allowed in the employment context does not necessarily dictate a like result in the college setting.

Wright 13 CURRENT STATUS OF SPEECH CODES With the Courts striking down the St. Paul ordinance as unconstitutional in 1992, combined with the various federal court decisions on the codes, many thought the issue had been settled. Opponents of speech codes thought the bar now set too high for any speech code to be ruled constitutional. n37 In 2003, the U.S. Department of Educations Office of Civil Rights issued a letter to all the colleges and universities under its jurisdiction (virtually all those in the United States) stating that the offices regulations were not to be used in support of speech codes. n38 But colleges and universities have not all dismantled their speech codes. A valid question is why many colleges maintain their restrictive codes in light of the universal rejection of the codes by state and federal courts across the country. One reason put forth by Jon Gould, a professor at George Mason University, for the real reason for the continued use of the codes is their symbolic value to a college. Whether reflecting the policy preferences of administrators or simply the utilitarian calculus that more was to be gained from the codes than lost, American academe seems to have accepted that the policies have value. At the very least, this norm sets up interests on one side of the scale that are resistant to removing the policies but for direct judicial enforcement. When those enforcement actions did not materialize, the persuasive impact of the courts' hate speech decisions were not enough to overcome the interests that schools and their officials have in the speech policies. By having a speech code, the college affirms their commitment against intolerance. It is this symbolic value, rather than looking for an actual way to punish speech, that fuels the continued acceptance of the codes. n39 CODE ANALYSIS As part of my research, I looked at the student handbooks of University of TennesseeKnoxville (UTK) and Tennessee Tech University (TTU), a Tennessee Board of Regents institution, as representative of the two public higher education systems in Tennessee. In looking at

Wright 14 these policies, I found that they follow what seems to be the two models of speech code construction: aspirational and restrictive. While restrictive speech codes have been well explained in the earlier review of cases, the concept of aspirational codes requires definition. These codes are those share, or encourage students to share, the values that [the institution] considers important without proscribing broad swaths of protected speech. n40 This type of code doesnt present its statements as mandatory or give students fear they will be punished for not sharing these values. They tend to avoid words such as ban, prohibit or forbid and avoid lists of examples of prohibited speech. The UTK speech code n41 is an aspirational one. UTK states that students must recognize their responsibilities to other individuals, to the university, to the state, and to the nation. The University of Tennessee takes pride in the fact that its campus is open to free discussion and examination of views, with the condition that such discussion be accompanied by peaceful methods and under peaceful conditions consistent with the scholarly nature of an academic community. Under court precedents, I think that UTKs aspirational speech code is constitutional in that it does not proscribe any speech that would be protected if it were expressed off campus. The TTU policy n42, however, is restrictive. In looking at the schools definition of racial harassment (only sexual and racial harassment are proscribed), the policy runs afoul of the Courts R.A.V. decision in that it is not content neutral. It defines harassment as being directed against individuals because of race, color, or national origin. In R.A.V., Justice Scalia asked about other subjects of harassment that may not be listed, such as political affiliation or beliefs, and said that you cant just choose to punish certain kinds of fighting words and not others.

Wright 15 The TTU policies are based on Equal Employment Opportunity Commission guidelines, which have been upheld for the workplace. But these guidelines, while acceptable for workplaces, have been found to non-applicable to students in their non-workplace speech (Lopez). It is both overbroad, in that it catches much protected speech in their sweep, and vague in prohibiting offensive or demeaning treatment of an individual where such treatment is based on prejudiced stereotypes of a group. Another problematic section of the policy is that it tries to define harassment, an abstract concept, with examples: It includes, but is not limited to, objectionable epithets, threatened or actual physical harm or abuse, or other intimidating or insulting conduct. Under court precedents, I think that the TTU speech code is facially unconstitutional.

A POTENTIAL SOLUTION With the Third Circuits 2008 DeJohn decision sending an unequivocal message to university administrators that speech codes are legally untenable in the university setting, n43 combined with Goulds concept that the codes have value to colleges, n44 one must wonder if there is a solution to this conflict. S. Douglas Murray points out one potential solution that may stand up to constitutional review: alter speech codes so they proscribe no speech, but instead enhance punishment for actual conduct. n45 In Wisconsin v. Mitchell, n46 the Supreme Court said that sentencing enhancement statutes regulate only unprotected conduct, and not protected speech. Similarly, a penalty enhancement could be adopted by a university to stiffen a students sanctions for conduct or behavior that is independently punishable apart from the actors bias or discriminatory motivations. n47 Murray argues that this alteration to speech codes would support

Wright 16 both conflicting goals, to preserve free speech and improve the university environment for minorities.

CONCLUSION This institution will be based upon the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it. Thomas Jefferson, upon the founding of the University of Virginia

One effect of speech codes not often discussed is that they are a disservice to students in that they do not teach students how to deal or react to speech they may find offensive. Under the marketplace of ideas doctrine, which is the foundation of the First Amendment law, the proper corrective action for offensive speech is more speech to counter the initial activity. Murray sums it up eloquently by stating, the likely decline in our youths quality of education surely would have a negative effect on the future of this country. n48 By a combination of altering speech codes to be aspirational and enhancing penalties for conduct, I believe that colleges and universities would be able to retain Goulds symbolic value, while ensuring the First Amendment rights of their students.

Wright 17 ENDNOTES n1 Foundation for Individual Rights in Education, Spotlight on Speech Codes 2010, retrieved from http://www.thefire.org/code/speechcodereport/ (2010) n2 First Amendment Center, Free Speech on College Campuses. Retrieved from http://www.firstamendmentcenter.org/Speech/pubcollege/topic.aspx?topic=campus_speech_codes (2010) n3 Robert ONeil, Free Speech in the College Community. Indiana U. Press (1998) n4 S. Douglas Murray, The Demise of Campus Speech Codes, 24 W. St. U. L. Rev. 247 (1997) n5 Id. n6 Jeanne M. Craddock, Words That Injure; Laws That Silence: Campus Hate Speech Codes And The Threat To American Education, 22 Fla. St. U. L. Rev. 1047 (1995) n7 Azhar Majeed, The Rise, Persistence, And Prevalence Of Campus Speech Codes, 7 Geo. J.L. & Pub. Poly 481 (2009) n8 Stephen L. Glaser, Sticks and Stones May Break My Bones But Words Can Never Hurt Me: Regulating Speech on University Campuses, 76 Marq. L. Rev. 265 (1992) n9 Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) n10 Corry et al. v. Leland Stanford Junior Univ., No. 740309, Cal. Super. Ct. (1995) n11 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) n12 Cohen v. California, 403 U.S. 15 (1971) n13 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) n14 Feiner v. New York, 340 U.S. 315 (1951) n15 Brandenburg v. Ohio, 395 U.S. 444 (1969) n16 Cohen v. California, 403 U.S. 15 (1971)

Wright 18 n17 R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992) n18 Virginia v. Black et al., 538 U.S. 343 (2003) n19 R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992) n20 Virginia v. Black et al., 538 U.S. 343 (2003) n21 Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) n22 Broadrick v. Oklahoma, 413 U.S. 601 (1973) n23 Street v. New York, 394 U.S. 576 (1969) n24 UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp 1163 (E.D. Wis. 1991) n25 American Booksellers Assn, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) n26 Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) n27 Healy v. James, 408 U.S. 169 (1972) n28 Widmar v. Vincent, 454 U.S. 263 (1981) n29 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) n30 Dambrot et al. v. Central Michigan University et al., 55 F.3d 1177 (6th Cir. 1995) n31 Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) n32 Corry et al. v. Leland Stanford Junior Univ., No. 740309, Cal. Super. Ct. (1995) n33 Roberts v. Haragan et al., 5:03-CV-140-C (N.D. Tex. 2004) n34 DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) n35 Lopez et al. v. Candaele, et al., CV 09-0995-GHK (C.D. Cal. 2009) n36 UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp 1163 (E.D. Wis. 1991) n37 ONeil

Wright 19 n38 Greg Lukianoff, "Campus Speech Codes: Absurd, Tenacious,and Everywhere." (2009) Retrieved from http://www.thefirelantern.org/2009/campus-speech-codes/ n39 Jon B. Gould, The Precedent That Wasnt: College Hate Speech Codes and the Two Faces of Legal Compliance, 35 Law & Socy Rev. 345 (2001) n40 William Creeley and Samantha Harris, Correcting Common Mistakes in Campus Speech Policies, retrieved from http://thefire.org/article/11188.html (2009) n41 Hilltopics, University of Tennessee-Knoxville student handbook 2009-2010 n42 Tennessee Technological University Student Handbook, retrieved from http://www.tntech.edu/handbooks/ttustudenthandbook/ n43 Majeed n44 Gould n45 Murray n46 Wisconsin v. Mitchell, 508 U.S. 476 (1993) n47 Murray n48 Id.