May 2016 Newsletter – Community College Districts

Recent Federal Court Of Appeals Opinion Clarifies When A College May Discipline A Student For Speech That Tends To Harass Or Intimidate

In the recent Ninth Circuit Court of Appeals Decision in O’Brien v. Welty, a politically active student at Fresno State University verbally confronted several professors about their political activism. The confrontation occurred outside the professors’ offices on the second floor of a school building. The student recorded the incident on video. The professors called campus police to have the student removed. After reviewing the video, campus administrators recommended disciplinary action against the student for violating the student code of conduct prohibits, which prohibits “[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct.”

The student filed a lawsuit alleging the University violated his free speech rights. Specifically, he alleged that the student code of conduct infringed upon his free speech rights and that the University imposed discipline against him for having engaged in speech and conduct protected by the First Amendment.

The Ninth Circuit Court of Appeals found that the University did not violate the student’s the First Amendment rights. Instead, the student code of conduct authorizes California State University branches to discipline students who engage in harassment or intimidation that threatens or endangers the health or safety of another person in the university community. The court also held that the space outside a professor’s office was not a public forum. Professors at work in their personal offices generally do not expect to be confronted without warning by a student asking hostile questions and videotaping. If uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, that conduct could be considered harassment or intimidation. Therefore, the university could regulate speech and expressive conduct as long as the regulation was reasonable and viewpoint neutral.

This case should serve as a reminder of the line between harassment or intimidation and free speech. While this case dealt with a university student, the reasoning would likely apply to community colleges as well. Community College Districts should carefully review their student codes of conduct to ensure that they have clear, reasonable and viewpoint neutral protecting community members from harassment while recognizing the First Amendment Rights of students. District should also consult legal could before taking disciplinary action against a student in situations where First Amendment Rights may be implicated.

For more information regarding this article, please contact Daniel Lowe at dlowe@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice.  If you would like further information on this matter, please contact our office.

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