Try as they might, California State University administrators can’t force students to be nice to each other.
U.S. Magistrate Judge Wayne Brazil issued a temporary injunction against the CSU system Wednesday, in which he struck down a portion of the CSU conduct code that mandates students “be civil to one another.” That language would likely not survive First Amendment scrutiny at trial, the magistrate found.
“It’s fine to say, ‘We hope you’re civil to each other,’” Brazil said from the bench. “It’s not fine to say, ‘We’ll punish you if you’re not.’”
The magistrate also told the CSU system it can only discipline students for “intimidation” or “harassment” when the health or safety of another person is threatened. In addition, Brazil struck down language in the San Francisco State University student handbook that holds out the possibility of corrective action against student groups if their members behave in opposition to SFSU goals and principles.
The case grows out of an anti-terrorism rally held last year by College Republicans at SFSU. The event turned testy when the Republicans stomped on Hamas and Hezbollah flags bearing “Allah” written in Arabic script. Onlookers from the school’s Muslim community objected, and one started to climb on stage to remove the flag, according to the university’s court filings. The two sides engaged in heated debate.
After the protest, the school received a complaint alleging the Republicans had violated the student code by attempting to “incite violence” and create a hostile environment, the school says in its court filings. After an investigation, the complaint against the Republicans was dismissed.
But the Republicans sued the university system, alleging several of its student policies violated the First Amendment. The university has argued in court papers that its policies are targeted toward student conduct, not speech, and thus are constitutionally valid.
From the outset of Wednesday’s hearing Brazil seemed intrigued with the case; he spoke for at least 40 minutes straight about its nuances.
“I was a professor at a college. My brother is the president of a college,” he said. “So I have considerable personal experience with, and sympathy for, what I’m about to describe.”
The magistrate then said he understood why a university would want student groups to abide by the school’s “goals and principles,” if that referred to the promotion of respectful and reasoned discourse on campus.
“But the First Amendment permits disrespectful and totally emotional discourse,” he said, adding that a person could behave in a way that is inconsistent with the school’s goals, but consistent with the First Amendment.
“There is a tension. Unfortunately, there is,” Brazil said. The magistrate said he would issue a written ruling very soon.
The plaintiffs’ lawyer, David Hacker of the Alliance Defense Fund, said he was “really pleased” with the court’s ruling.
“American colleges and universities must protect the rights of all students to free expression,” he said. “We’re glad the court upheld the Constitution today.”
CSU in-house attorney Andrea Gunn declined to comment following the proceeding.
The case is College Republicans at San Francisco State University v. Achtenberg, 07-03542.