Contributing editor at the Higher Education law and a member of the Editorial Board of the journal cases in education. He has worked as a Higher Education policy analyst at the Florida Legislature and as a turkey says he had for the florida Postsecondary Education planning commission. We also have leonard niehoff, professor at the university of Michigan School of law and a counsel to a law firm. He is the author of numerous publications in the field of First Amendment law and Higher Education lot and for more than 30 years is litigated cases on behalf of the media entities and colleges and universities and he got his ba and jd from the university of michigan and studied at the ecumenical theological seminary. Each panelist will take for about 12 minutes. I will ask a couple questions and then it will be up to you ought to follow up. Good afternoon and thank you for inviting me to participate in this important symposium and for including me in such distinguished company. And accepted the invitation, i didnt know i would be the followups beaker to a charming, brilliant living jurisprudential bloodshed and how they known, i certainly wouldnt decline. I view impart my job as being below expectations and i think youll all agree ill do it. I want to use as the launching pad for my remarks in 1999 Federal District court decision. As all of you probably know, the seminal case on campus speech codes has just recently passed its 25th anniversary. I thought the symposium might be a good occasion to look back, and see where we were, assess where we are and ask whether we made any progress in the way in which we think about and discuss these issues. Spoiler alert, the news is not good. As you will recall, and no come a federal court found unconstitutional a policy that the university of michigan have a. Did in response to a number of racially charged incidents on campus. As a legal precedent, i dont think they actually offer many extraordinary insights. The policy was pretty clearly overbroad and vague and it was dead on arrival at the federal courthouse. We dont need to perform any elaborate autopsies today to confirm the factory because of that. So why should we care . Theres several reasons. First, dell was an early excursion into territories that have now become familiar to us hear the case was therefore decided before controversies had grown in crested with some of the concepts that bring them today. Second, although the University Policy and doe was badly flawed, it seems clear that this active in faith at least i believe. The issues the university face are real, significant demand in kind of odds. Similarly, it seems clear to me the plaintiffs i could in good faith if i had been teaching a university of michigan when the challenge policy had been in place. I wouldve had concerns, too. These days when does on each side of the debate are so eager to character does on the otherwise clueless or even dallas, it seems refreshing to consider a case where i think both sides have a point. Third, the passing of 25 years to write an occasion for calling into question, rethinking about issues now better than we were thinking about them then . It does seem fair to expect some Forward Movement over a quartercentury span. So have we seen any . I have three use. The first is that send doe was decided, we have indeed been significant change in how we aint about and discuss the inflicting values of speech and equality on campus. The second is that the changes overwhelmingly for the worse. The third is things are unlikely to get better anytime soon. It is a grim and discouraging assessment that i bring you today nor is it likely to win me any friends or perhaps any additional invitations to symposium. Because as you will see, i believe the blame for this situation lies with both sides of the debate. I think everyone has had a turn of the switch in creating this train wreck. I think everybody has tossed some fuel on this dumpster fire. Before we get too far, id like to remind you what happened in doe. The university of Michigan Community was in the late 1980s when a number of racist incidents occurred on campus culminating in a rash in the early 1987. Theres a number of examples to give you one. It involved the distribution an anonymous flyer they used a series of racial epithets regarding blacks and declared, quote, open season, unquote on them. The University President issued a formal statement condemning the statements that the state legislature held hearings about racism on campus. Some 48 witnesses testified about racial tensions in issues in the university of michigan campus. In response, the University Set about drafting an antiharassment policy. The final version breached very broadly. It applied to classrooms, libraries about laboratory, recreation and study centers. In these various persons are subject to discipline on a number of grounds including trade engaging in speech that stigmatized orbit denies someone based on a characteristically race, ethnicity, gender or sexual orientation. Sanctions depended on the gravity of defense and they were potentially severe. The University Also issued a guide and in some ways the most interesting thing about doe is the public eye rather than policy. Igad reported to be an authoritative interpretation. A guide offered troubling examples of speech that it deemed discriminatory or harassing. Some examples above speech that appeared ready clearly to be protected under the First Amendment. Others above speech that didnt seem to actually fall within the broad language of the underlying policy. At the time the policy was adopted, john doe, our anonymous plaintiff is a psychology graduate met the university. He taught classes that export controversial areas that he worried some students would be u. S. Accessed, concerned that his teaching might violate the policy, he sued. He was represented by a law professor, bob settler of doing state university. Judge abram who presided over the case included the policy was unconstitutionally overbroad. He also wrote a number of critical terms of the document like stigmatized and victim has rendered the policy unconstitutional a bag. In the course of the litigation, the university withdrew some provisions of that policy and it tually withdrew the guide in its entirety. But it would be fair to say these maneuvers did not impress judge cohen. Indeed, judge cohen had a number of grievances at the university and how the case was litigated and so forth in the catalogue them twice. Once at the end of doe and again in a law review article he later wrote about the case. One gripe made in retrospect strikes us as ironic. Towards the end of doe, judge cohen suggested at the end of his policy michigan mightve found a great deal by looking to experiences of another great university, gail. Im not sure today anyone on either side of the debate thinks the Perfect Solutions to these problems reside in new haven. But here is the point. Although judge cohen found the policy unconstitutional and on a variety of grievances with the institution, his opinion reflects genuine respect for the universitys concerns, for the complexity of the problem before it. Indeed the first sentence in doe in the case strikes down it is an unfortunate fact because of our constitutional system the ideals of freedom and equality are often in conflict. The difficult and sometimes painful past of the legal institutions is to mediate the appropriate balance between these two competing values, unquote. In the same spirit, the opinion concludes by recognizing the universitys obligation to ensure equal Educational Opportunity to all the students, unquote and by expressing sympathy with that goal. Even the lawyer who represented doe voiced similar views on the log of your article that he published about the case. Silica were doe what does 25 years ago. It acknowledged the value of both Free Expression and equality. A recognized collisions between these two values were inevitable. It understood that mediating the conflict between these values was hideously complicated. It grasped that people of good faith would make mistakes and trying to work through those tensions. Doe was in many respects the perfect starting point for a civil informed, respectful, project and dialogue all towards the end of that dramatically improved campus environment. Well, so much for that. So where are they now . Doe raise concerns about a hostile suggestion nationally has got considerably worse. The number of racial harassment in its report at the department of education roaster manically from 20092014 and studies estimate only 13 of such incidents are even reported an campus authorities are very high. Furthermore, studies suggest the problem has grown worse as affirmative action has become less available in some jurisdictions as a tool and Campus Diversity has suffered as a result. In any event, there is certainly an increased awareness of such incidents. Social media has facilitated constant widespread communication about the six. Said he would consider, for example, the relatively wellknown hash tag movement at at for black students use the challenges they face on campus, some conspicuous, so much slower. This consciousness also has to do with the shifting understanding of how harassment, discrimination and marginalization have been paid for example, we have a better sense now than we did in 1989 of how even an advert micro aggression can disrupt a Student Learning experience. In 1987 when doe was tried, we knew that the kook klutz claim uniformed that was hung from a dormitory window at michigan was a racist act. Just as in 2015, we knew that the statute of James Meredith in mississippi was a racist act. But today you also have a much more refined view of the scope of the problem and it turns out to be even deeper and more daunting than we understood 25 years ago. Nor are those dynamics exclusive to racial issues but the most recent data regarding the number of Sexual Assault on nation campuses are shocking. In 1989 the concept was still relatively new. 25 years later we have a much better understanding of the extent of the big and the station and around the issue of trigger warnings is engaged in a debate about how to deal pedagogically with the statistical reality that almost certainly more than one of our students will be suffering under the trauma of such an experience. Universities have serious work to do. We have serious conversations to get it done. Serious conversations on these topics are hard to come by. The groups and individuals to raise issues are settled as we clean at whiners. Calls for greater awareness, sensitivity and action are met with accusations of political correctness, it is not yet emerged in 1989 and that i personally would happily sending to a lazy minded label that people substitute for an argument. Weve come a long way from the balance and stability to doe to nowhere good. Furthermore, no conversation about these topics can be conducted because discourses shut down ironically in the name of free speech. A concern is raised about how to do a speech that offends someone to the point of interfering but we are told we can even air the concern to figure out how to address it because freedom of speech stands in the way. The First Amendment, the grand midwife with ideas is now routinely used to abort them. As you may have gathered, irony is one of my central themes. Is on the other side of not serve the conversation will be there. Social media has played a role because they allow for the airing of grievances that are serious, thoughtful and legitimate, but also those that are petty, self absorbed. Those who tweaked before they think they make themselves into easy objects of parity and discover theyve become an advert coconspirators of the trivialization of concerns. We see the paradoxical impulse to sentence people in the service of the First Amendment. When you think someone has a right to photograph your protest because of freedom of speech, youre confused. When you bought them from doing so can we are deeply confused. When you think freedom of speech gives you the right to intervene you are dangerously confused. They often fall subject for every action, there is a nonequal and opposite overreaction. We tend to think big problems call for Bigger Solutions so of course the policy in doe turned out to broad and out to brought into too vague as to many such policies it after all its counterintuitive to think you could address a complicated problem in another way. The other way, the miramar cautious ways of the jurisprudence wants us to think about it. Maybe you can see what im skeptical things will get better anytime soon. Besides as fryman, language and concept and appear to become perversely comfortable they are in a highly efficient mechanism does exist for making trouble in the comfortable people uncomfortable. It is called freedom of speech. As they say, whichever side youre on, the other side doesnt get to use it. Thank you. [applause] good afternoon. I am delighted to be here and i appreciate the generous invitation to join you. I would like to thank you for the opportunity to be present. Also, we had this conversation knowing that you have to follow Justice Stevens is something to think about. Happy to be here. In that time today, i thought that i would do is provide a brief revisitation of some of the key u. S. Supreme court cases that are the drivers of the analytics for how we observe issues related to student freespeech question out of touch on those, develop or terms and then a specific case that is interesting and illustrates the power of litigation which student feel they have been so great. Why dont we begin with the magna carta. I will cover to much detail because we taught about it as Justice Stevens. As we know, black armband is considered to be a symbolic speech. It is the material disruption standard that we all notice. Someone earlier and one of the questions which we dont hear colliding with the rights of others. That is a very interesting question i think to be explored at another time. We know that is developed in 1969. Ever then fastforward to 1972, healey versus james is a case involving a Public Institution were a Student Group sought to establish a chapter of the students for a Democratic Society which was a somewhat controversial organization that had been suggested to incite violence on College Campuses. The administration grew concerned about the application, denied on the basis. The Supreme Court concluded that just because an idea is unpalatable does not mean it can be retreated. That does not enter into the ambit of the First Amendment. That is our second speech ruling and i want to read you a little bit of the language from justice powell. The president s of the court leaves no room for the view that because of the acknowledged need for the First Amendment protection should apply with us for some College Campuses than in the community atlarge. Quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more than in the community of the american schools. The College Classroom at its surrounding environment is particularly the marketplace of ideas then we break no constitutional ground in reaffirming the nations dedication to this safeguarding academic freedom. We move forward to 1981. This is the case involving a group of students and religious questions. A group of students and religious organization requesting the use of facilities at a Public College campus out of fear of running the establishment clause, the request was denied. The Supreme Court concludes that was an improper denial because the students were discriminated against based upon the content of their message. This is an important term. You know the foreignness they are. Student organizations exist. If some are available, ill should be equally not discriminated against based on content. Then we fastforward to 1995. Rosenberger discussed as well briefly just to see sense. Another case involving a religious request asking for money to produce a publication called wideawake publications that was religious obviously in nature. For fear of writing the establishment clause, it was denied in the Supreme Court and takes the further position that this group was discriminated against narrowly or a similar viewpoint. The difference between content and viewpoint is always a question and they are quite certainly related in my little bag of tricks and am working with students, i learned to use the context of football because it works very well and in this room in a foreign, we can talk about anything there is to be discussed, but we cannot talk about foot of. Ive been limiting a content discussion. However, in this forum we can discuss the volatility in 50 years, but we cannot discuss the university of miami football as a viewpoint restriction and the nuance of the revolt ends. That is further narrowing the viewpoint restriction and a case involving students who have checked japan mandatory student fee. So with god content. Weve got viewpoint. These are the element of the analysis and litigation when these cases reach the courts ends todays make the decision to litigate. Very briefly good, okay, excellent. So, rock for life versus u. N. D. C. This is a 2012 case i bring up just because i think it is interesting in this particular circumstance, a group of students who are antiabortion Student Groups sought to display what is called a cap display, which was an asset graphic ph