Author: ADF Senior Counsel David French
Late yesterday afternoon we received word that the federal district court granted the university’s motion for summary judgment dismissing Julea Ward’s case against officials from Eastern Michigan University. The opinion contains a cascading series of assumptions that made it virtually impossible for Julea to prevail, and we will appeal promptly.
As an initial matter, the decision represents the first-ever district court opinion to uphold a speech code. The court does this by calling the EMU counseling department’s speech policies an “academic curricular requirement” and noting that, unlike other speech codes, it did not apply to all students on campus — merely to counseling students. While I’ll have much more to say about this issue, the court’s “academic curricular” exception to speech code jurisprudence creates an exception that threatens to swallow the rule. Under the court’s reasoning, it would be a fairly simple matter for universities to incorporate speech codes into professional school handbooks and even into departmental policies. Moving expansive nondiscrimination codes into departmental or professional school policy handbooks and catalogs doesn’t change their real-world effect, it merely relocates their source.
Second, the Court discounted Julea’s evidence that the university was attempting to force her to change her beliefs, stating: “While the defendants may have been indelicate in their inquiry into Ms. Ward’s beliefs, they never demonstrated a purpose to change her religious beliefs.” Yet the transcript of her formal review at the university (quoted in Paragraph 84 of Julea’s Complaint) stated that the disciplinary process was ongoing because Julea had “communicated an attempt to maintain this belief system and those behaviors.” (Emphasis added). There were many other examples that the judge swept aside as “indelicate,” including a “theological bout” between Julea and a member of her formal review committee.
Third, after characterizing the counseling school’s speech code as “curricular” and dismissing Julea’s evidence that Defendants punished her for not changing her “belief system”, the Court applied the Hazelwood v. Kuhlmeier standard to grant extreme deference to the university officials’ actions so long their actions were “reasonably related to legitimate pedagogical concerns.” (Obviously, changing the student’s religious beliefs is not a “legitimate pedagogical concern,” but the court had already held — erroneously, in our view — that this was not the defendants’ purpose). The Supreme Court formulated the Hazelwood standard in the high school context, and there is disagreement amongst the federal circuits regarding its application to college (much less graduate school).
We have the utmost respect for the judge in the case and I enjoyed arguing in front of him. We disagree with the ruling however, and we look forward to arguing the case before the Sixth Circuit.
This post originally appeared here.