Group Tells Public-College Presidents They May Be Personally Liable for Speech Codes

The Chronicle of Higher Education
Thursday, January 15, 2009
By PETER SCHMIDT
A group that advocates free speech on campuses has sent the top officials of 266 public colleges certified letters warning them that they might be sued as individuals if their institutions do not lift certain speech restrictions.
The Foundation for Individual Rights in Education, based in Philadelphia, mailed the letters to college presidents and chancellors in mid-December in an effort to pressure their institutions to alter their speech policies voluntarily. The letters cite several court rulings that the group regards as prohibiting one or more speech policies in place at the colleges, and they argue that the administrators, having been apprised of such developments, will have difficulty claiming legal immunity from liability for their actions.
"When the law is so clearly established with regard to unconstitutional speech codes, claims of immunity from liability on the part of individual administrators will likely fail," the letters say.
The letters cite a 1982 Supreme Court ruling, in the case Harlow v. Fitzgerald, which held that government officials have immunity from personal liability for their actions only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
In an interview on Wednesday, William Creeley, who signed the letters as the organization's director of legal and public advocacy, said their primary objective "is kind of a practical one, from our standpoint—to put schools on notice in a legally cognizable way."
"This is something we can point to to say, 'You should have known. You were warned,'" he said.
In a later e-mail message, Mr. Creeley said, "We believe that once administrators are made aware of the fact that they may risk personal liability by maintaining unconstitutional speech codes, changes will occur more quickly on public campuses."
Although the group, known as FIRE, does not itself litigate cases, it has assembled a network of like-minded lawyers whom it taps to mount lawsuits against campus speech policies that it views as objectionable. A campaign it calls the Speech Code Litigation Project has already scored court victories in cases involving San Francisco State University, Temple University, and Texas Tech University.
Ada Meloy, general counsel for the American Council on Education—an umbrella organization representing colleges and higher-education associations—said her group's members have been in touch with her about the FIRE mailing. "It certainly sounds like FIRE is putting a lot of incendiary language in a form letter," she said. "I don't think FIRE is a disinterested observer."
Citing a recent FIRE report, the letters say that 77 percent of the 260 public colleges that the group recently surveyed have at least one policy that clearly and substantially restricts freedom of speech.

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