Defending Education Files Suit Against the University of California for Unconstitutional Speech Policies

Instead of promoting the robust exchange of ideas, universities are now often more interested in protecting students from ideas that make them uncomfortable. Universities do this by adopting policies and procedures that discourage speech from students who disagree with the prevailing campus orthodoxy. The University of California (UC)–which has an extensive and documented history of speech censorship–is just such a university system.

UC’s Sexual Violence and Sexual Harassment (SVSH) Policy is a systemwide policy billed as necessary to maintain a “community free from harassment, exploitation, or intimidation.” This policy applies to all UC employees, undergraduate, graduate, and professional students, and third parties. What’s more, students and employees in UC System schools must complete mandatory training—the “Sexual Harassment, Anti-Discrimination, Prevention and Education” (SHAPE) training—to ensure they understand the SVSH Policy. The SHAPE training explains that “[i]ntentionally calling someone their name used before transition, as opposed to their lived name, is called dead-naming, and may be a form of sexual harassment.” Finally, UC’s Anti-Discrimination Policy similarly prohibits “harassment” through a “hostile environment” based on a person’s membership in a “Protected Category.” Protected categories include “gender, gender identity, gender expression, gender transition, [and] sexual orientation.” But the UC system’s definition of harassment includes “acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender, gender identity, gender expression, sex- or gender-stereotyping, or sexual orientation.”  Among those acts of “verbal intimidation or hostility” in the UC system is the failure to use an individual’s “preferred pronouns.”    

The protection of First Amendment freedoms is nowhere more vital than in American institutions of higher education. In fact, the college classroom has been referred to by the U.S. Supreme Court as the “marketplace of ideas.”  But marketplaces of ideas wither without open discourse and debate matters of gender identity and the fixed nature of biological sex. Speech codes like those in UC’s SVSH policy impose vague, overbroad, content- and often viewpoint-based restrictions on speech. And, as the Supreme Court has routinely confirmed, they are unconstitutional.

According to a recent survey of almost 70,000 American college students, nearly 50% reported feeling uncomfortable expressing their views on controversial political topics in class or in conversations with other students. That kind of self-censorship cannot stand; it is odious to the Constitution of a free Republic.

DE has brought suit against various officials in the UC system for First and Fourteenth Amendment violations and looks forward to vindicating the free speech rights of its college student members in federal court. 

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Read the full lawsuit below: