Iowa State University sued in First Amendment case.
In court documents filed on October 17, 2016 in the U.S. District Court for the Southern District of Iowa, Robert Dunn, a student, alleges that faculty and administrators at Iowa State University punish student speech that is expressly acknowledge as protected by the First Amendment. Dunn is being represented by the Alliance Defending Freedom, a conservative 501(c)(3) organization with the stated goal of “defending the right to hear and speak the Truth through strategy, training, funding and litigation.” “According to the lawsuit, senior Robert Dunn claims the university put a hold on his graduation, following his refusal to complete an online training program on ‘the university’s non-discrimination policies and procedures,’ on the grounds that the policies are vague, over-broad, discriminatory, and violate his rights afforded to him under the First and Fourteenth amendments.” More specifically troubling are the Discrimination and Harassment policies published by the ISU administration which could punish student speech based solely on the listener’s subjective views about the value of that expression. For instance, section 3.4 titled Academic Freedom or Freedom of Speech states: Enforcement of this policy must respect the principles of academic freedom and the right of free speech. Therefore, in evaluating whether speech has become harassment, the following factors will be considered:
The tone of voice, gestures and behavior of the speaker;
Whether there is conduct or speech which indicates a discriminatory purpose or a constructive purpose;
Whether the speech is made in a context where the recipient is in a position to avoid the speaker;
Whether the speech is germane to an academic exercise and recognized by peers as a legitimate topic or way of presenting academic material;
Whether the speech is made in a public forum on a matter of public concern, or otherwise in a context in which free debate is encouraged;
Whether the speech is directed toward specific individuals or a specific group of individuals;
The degree to which the expression was necessary to the discussion of the subject matter;
Whether the speech is so severe as to amount to a crime under Iowa law; and
Whether the speaker did or could anticipate that the speech would intimidate or interfere with an individual's ability to continue to participate in university activities.
When investigating conduct which includes scholarly discourse, the office of equal opportunity will be cognizant of the provisions of the faculty handbook on scholarly discourse and germaneness.
In other words, it appears that per Iowa State University policy, the value of speech is inversely proportional to the offense felt by the listener. At least, that is the case that Dunn is making. It will be interesting to see the defendant’s answer and their legal justification for these claims. Remember, the seminal case of Tinker v. Des Moines Independent Community School Dist. illustrates plainly that while student’s free speech rights aren’t stripped at the school house steps, there are always exceptions that can be hollowed out by administrators.
— Derek A. Jordan, Esq., Barnes Law
Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law and land surveying in Tennessee.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.