PENNSYLVANIA –A university student is suing Penn State University to challenge theschool’s anti-discrimination and harassment policies, which he claims ”suppress the discussion of controversialviewpoints.”
Attorneys from the Alliance Defense Fund filedsuit Feb. 22 in the U.S. District Court of the Middle District of Pennsylvaniaon behalf of Penn State sophomore A.J. Fluehr, alleging that portions of theuniversity’s student guide have a chilling effect on his speech, accordingto the lawsuit.
The Alliance Defense Fund is a non-profitorganization based in Scottsdale, Ariz., that advocates for religious libertyand expression.
The lawsuit claims that the university’santidiscrimination and intolerance policies violate the First Amendment bypreventing Fluehr from openly expressing his political, cultural and religiousopinions.
”Penn Stateis dictating morality when it shouldn’t be, and it goes too far when theystart infringing on the First Amendment,” Fluehr said.
Fluehrand other students were increasingly frustrated by the university’spolicies, said David French, an Alliance Defense Fundattorney.
”For A.J. and others on campus, if you’re goingto engage in any speech outside mainstream attitudes, you run severerisks,” he said.
As part of its antidiscrimination policies,the university sponsors a ”Report Hate” telephone hotline and a Webform where students can confidentially report acts of intolerance. French saidthe hotline and Web form are structures that ”vigorously” enforce” the school’s unconstitutional harassment and intolerancepolicies.
But Tysen Kendig, a spokesman for PennState, said the policies primarilytarget acts of intolerance, not intolerant speech. There is no university policythat infringes on a student’s right to free expression, hesaid.
”Penn State does nothave a speech code,” Kendig said. ”We don’t know why someonewould claim that we do, let alonefile a lawsuit over something that doesn’texist.”
An excerptfrom Penn State’s policy reads: ”Harassment may include, but is notlimited to, verbal or physical attacks, written threats or slurs that relate toa person’s membership in a protected class, unwelcome banter, teasing, or jokesthat are derogatory, or depict members of a protected class in a stereotypicaland demeaning manner, or any other conduct which has the purpose or effect ofinterfering unreasonably with an individual’s work or academic performance orcreates an offensive, hostile, or intimidating working or learningenvironment.”
Fluehr’slawsuit is a ”facial challenge” to the university’s policies,and does not allege that Fluehr was ever punished for his speech, Frenchsaid.
According to thelawsuit, Fluehr belongs to student organizations that express opinions aboutgender, race, religion and sexual orientation that may offend other students andbe punishable under the university’s studentpolicies.
An article in TheCollegian, the student-run newspaper atPenn State, said Fluehr is a senator in the Undergraduate Student Government anda member of Young Americans for Freedom, a self-described conservative studentgroup.
”Thegoal of this lawsuit is to ensure legal equality, and to make sure that eventhose outside the mainstream enjoy equal participation,” Frenchsaid.
Fluehr said the policies are smothering debate on campus. Forexample, Fluehr said he was interested in passing out copies of thecontroversial Danish cartoons of the prophet Muhammad and talking about thesituation, but did not for fear of violating the school’s policies.
”But as a student, you have to think, ‘Is it worth therisk of the university punishing you to do this?”’ hesaid.
Ed Rowe, president of Allies, the largest on-campus group forgay, bisexual and transgender students, said he supports the lawsuit’schallenge to a portion of the university’s policy that relegates outdoorstudent demonstrations and meetings to 12 specific locations.
But hesaid he is alarmed by the suit’s efforts to strike down intolerance andharassment protections that took decades to include under universitypolicy.
Rowe said he is supportive of the ”marketplace ofideas,” even ideas he does not agree with. But he said the First Amendmentdoes not protect hate speech and harassment, and Penn State’s policies arein place to regulate speech that may harass students.
”I canhold my own against a student who holds out a Bible and questions the ‘homosexual lifestyle,”’ Rowe said. ”But that’snot what it’s about. The policies make sure people can’t makestudents’ lives a living hell on campus. They truly can’t followstudents around harassing them.”
If the nondiscrimination andintolerance policies were changed or pared down, Rowe said the campus wouldbecome more hostile to gay students and students of color. Any change to thepolicies would be a ”giant step backwards,” hesaid.
Fluehr said harassment would not increase if the policies werethrown out because state laws already prevent ”vicious and horrible” acts of harassment.
”We’ve moved away from freedom ofspeech being the most sacred value,” Fluehr said. ”Now, notoffending someone is more sacred.”
Intolerance and harassmentpolicies that have a chilling effect on student speech are ”unfortunatelyexceedingly common” at universities and colleges around the country,French said.
”It’s the rule rather than exception,”he said.
Harassment policies with similar language to PennState’s policies have been struck down in other courts, he said.