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The Bracket of Shame

October 17, 2017
By Casey Mattox 

Anyone following the state of the First Amendment on our tax-funded university campuses knows that the madness is not limited to March. I have spent most of my legal career suing universities that violate students’ First Amendment freedoms. The ADF Center for Academic Freedom has secured nearly 400 victories for student free speech rights. As a college basketball (UVA) fan and campus First Amendment advocate, I can’t help but think about the speech policies on these campuses when I fill out my bracket. So I wanted to try picking an NCAA Tournament bracket if the schools with the worst free speech records advanced.

Of course, this only addresses the schools that made the actual NCAA Tournament. So underperforming basketball programs like North Carolina State – or non-Division 1 schools like Cal State – LA, Queens College, or Michigan’s Kellogg Community College – are great examples of how the First Amendment does not work. They are off the hook because they aren’t in the dance.

Disagree? Let me know. I explain the current and recent First Amendment violations for each school below. But you can select your own Bracket of Shame “champion.” If you think I have missed a key policy, and especially if you are a student who would like our help in addressing these or other violations of your freedoms protected by the First Amendment, please contact us. With thanks to our friends at FIRE, Campus Reform, College Fix, and others who have identified many of the problems cited below, here is the Bracket of Shame.

East Region:

16 Mt. St. Mary’s v. 16 UNO (play in)

  • New Orleans draws a fortuitous matchup with private, Mt. St. Mary’s, easily advancing from the play-in game (this seems like an appropriate place to use the non-politically correct term) with its unconstitutional speech codes.

1 Villanova v. 16 UNO

  • A 16 seed has never beaten a 1 seed in the NCAA Tournament. But shouldn’t the first to beat a 1 seed be “UNO” anyway? In the Bracket of Shame, private Villanova just can’t compete with a constitutionally-bound University of New Orleans that actually tells its students: “acts of intolerance … are neither appropriate nor tolerated.” Perfect.

8 Wisconsin v. 9 Virginia Tech

  • Virginia Tech recently had an embarrassing episode when it canceled a speech by James Riley (later reinviting him and apologizing). And it has a number of unconstitutional speech codes, including one that allows the school to charge student groups for “sensitive” speakers. But here Buzz Williams’ Hokies run into a Wisconsin buzz saw of First Amendment shame. The Badgers don’t even have to point to their litany of lawsuits to slip by VT. The recent attempts to stop Ben Shapiro from speaking and to punish Young Americans for Freedom for inviting him help UW to advance.

5 Virginia v. 12 UNC-Wilmington

  • As a UVA grad and Tony Bennett fan, its weirdly hard to pick against the Hoos, even in a Bracket of Shame. But as shameful as Kyle Guy’s man bun may be, UVA is no match for UNC-Wilmington. Yes, UVA went to the Supreme Court to try to deny student activity funding to a religious student magazine. But Rosenberger was two decades ago. Since then UVA was one of the first public universities to eliminate its speech codes. UNC-Wilmington on the other hand has been a University on a mission against the First Amendment, especially those of Professor and ADF client Mike Adams (more below). But on speech codes alone UNC-W advances.

4 Florida v. 13 East Tennessee State

  • This is a tough matchup. A few years ago, Florida would have been a shoe-in. It was aggressively pursuing its religious student groups, threatening to punish any that sought to ensure that their leadership shared their religious beliefs. But then the school abruptly changed course when its Eleventh Circuit argument in Beta Upsilon Chi v. Machen did not go well for it. Florida has since also remedied its speech codes. East Tennessee St., on the other hand, has not, and limits students to 2 free speech zones open only from 9-3 daily. ETSU pulls the upset.

11 Providence v. 11 USC (play in)

6 SMU v. 11 USC.

  • Another private school clash, so neither school is bound by the First Amendment, but give SMU the nod with this speech chilling beauty: “any activity that has a negative impact on others will not be tolerated.”

3 Baylor v. 14 New Mexico St.

  • New Mexico St. nips private Baylor on the strength of its policy making statements that create an “offensive environment” punishable harassment. 

7 South Carolina v. 10. Marquette

  • I sued South Carolina several years ago when it prohibited religious student groups from receiving student activity fees a decade after the Supreme Court held this was unconstitutional (USC changed the policy in response). And it still maintains a “solicitation” policy forbidding unrecognized student groups from soliciting members necessary to become a recognized student group (see the problem?). USC advances.

2 Duke v. 15 Troy

  • It’s hard to imagine a team featuring Grayson Allen (notice how close his name is to Alan Grayson?!) not winning in a “Bracket of Shame.” But Troy, unlike Duke, is actually bound by the First Amendment. This seems to come as a surprise to the authors of Troy’s unconstitutional speech codes. Duke’s trip is short-lived in the Bracket of Shame.

Rest of the East Regional:

UNC Wilmington had an unfortunate draw. In any other bracket, its multi-year effort to retaliate against ADF client Professor Mike Adams for his conservative views, would make UNCW an easy pick for the Final 4. But it has the misfortune of meeting a University of Wisconsin that (including its system campuses) ADF has had to sue at least six times for violations of the First Amendment rights of its students, including unconstitutional student activity funding policies and discrimination against religious students and student groups. Congratulations Wisconsin. You’re going to the Final 4 in the Bracket of Shame.

West Regional:

1 Gonzaga v. 16 South Dakota State:

  • South Dakota St.’s ambiguous speech codes may make this the stiffest competition Gonzaga has faced since conference play began (*cough*). Still, despite it being a private school, I give special consideration in my Bracket of Shame to the school that hired Melissa Click, best known for threatening violence against student journalists at the University of Missouri. Gonzaga at the buzzer.

8 Northwestern v. 9 Vanderbilt:

  • Northwestern has its own speech code issues, but in a matchup of secular private schools, Vanderbilt easily advances in the Bracket of Shame. Vandy has effectively banned orthodox Christian student groups from its campus, requiring them to agree to allow atheists to be Bible study leaders if they want to be recognized. Vandy also violated federal law by trying to require nursing school students to submit to abortion training in violation of their conscience until it backed down in the face of an ADF complaint to the U.S. Department of Health and Human Services.

5 Notre Dame v. 12 Princeton

  • In a private school matchup that should never have happened (because Notre Dame is underseeded), Princeton advances with its more restrictive speech policies.

4 West Virginia v. 13 Bucknell

  • West Virginia was the home of one of the first speech zone cases, and one of my first as an attorney. While the speech zones are now gone as a result of that litigation, West Virginia still maintains a policy allowing complaints against students for “abuses of social justice principles.” I don’t even know what this means (and neither does WVU), but I know it’s not consistent with the First Amendment. Shame.

6 Maryland v. 11 Xavier

  • This is a matchup of a public university that has worked to correct its speech codes and a private Catholic college. Shame is a strong term here, but Maryland advances on the strength of system school, University of Maryland - Baltimore County’s banishment of a pro-life group to the fringe of its campus and speech codes that were corrected only after a lawsuit by ADF.

3 Florida St. v. 14 Florida Gulf Coast

  • Florida St., with its unconstitutional speech codes, easily advances over its in-state opponent. The Daily Caller recently identified FSU as one of 10 schools where free speech is threatened, citing one of these overbroad policies.

7 St. Mary’s v. 10 Virginia Commonwealth

  • VCU slides past private St. Mary’s on the strength of its speech codes, including one authorizing residence staff to remove a student’s expression on her own door that doesn’t reflect the school’s own values.

2 Arizona v. 15 North Dakota

  • Both schools maintain problematic speech codes. Arizona has an overbroad “harassment” policy. North Dakota appears to require unconstitutional advance approval for student assemblies.  But the President of the University of North Dakota recently rebuffed attempts to limit student free speech rights, saying: “If we value freedom of speech, we must acknowledge that some may find the expressions of others unwelcome, painful or even offensive.” On the strength of that welcome and all too rare statement by a University President, Arizona advances.

Rest of the West Regional:

This one comes down to Florida State and Vandy. Florida State’s speech codes violate the First Amendment and should be challenged (FSU students contact us here). Its student government’s call for the administration to punish fellow students for dressing like Native Americans at Seminoles games (seriously?) doesn’t speak well of the environment for free speech on campus. But while it takes a rare private school to advance in the Bracket of Shame, Vandy is that school. The secular university’s multi-year campaign against religious student groups on campus makes it deserving of its spot in the Final 4 of Shame.

Midwest Regional:

16 NC Central v. 16 UC Davis (play in)

  • UC Davis had one of the more comical – albeit revealing – “nondiscrimination” policies I’ve ever seen. The school prohibited religious discrimination (as all do), but then explained that this policy only applied to “oppression toward those who are not Christian.” That’s right. It expressly permitted discrimination against Christians while protecting all other faiths. The school quickly eliminated this policy in response to a demand sent by Alliance Defending Freedom. UC Davis moves on to face…

1 Kansas v. 16 UC Davis

  • This one gets tricky. UC Davis maintains policies on “bias incident” reporting that chill student speech. But Kansas’s definition of punishable “harassment” is so broad that it literally includes being turned down in requesting a date (talk about high stakes!). Kansas students also shut down a meeting of YAF in this exchange caught on video after a YAF leader said “facts don’t care about your feelings.” But this one comes down to two state laws. Kansas recently passed a state law protecting the right of religious student groups to have leaders who share the groups’ views. Good for Kansas and KU students! But, California passed a state law banning state funded travel to Kansas and other states who pass religious freedom laws California’s government doesn’t like. If, as the Daily Caller has reported, this law prohibits students from traveling to or receiving student activity funding for travel to Kansas (and other states) it violates the First Amendment. (CA students, contact me here). UC Davis advances on the shame of its state legislature.

8 Miami v. 9 Michigan St.

5 Iowa St. v. 12 Nevada

  • Last fall I sued Iowa State because of the school’s stunningly broad speech codes forbidding speech that “annoys” another, and informing students that even “First Amendment protected speech activities” may constitute harassment “depending on the circumstances,” including whether other students believe the speech is not “legitimate,” not “necessary,” or lacks a “constructive purpose.” Few schools can compete with these speech codes. Iowa State advances in the Bracket of Shame.

4 Purdue v. 13 Vermont

  • Purdue has eliminated its speech codes, at least nominally protecting student speech. Vermont, however, retains problematic speech codes and a “bias response team” that has drawn concerns even from its own faculty about “Orwellian” threats to student speech. Vermont advances.

6 Creighton v. 11 Rhode Island

  • Rhode Island easily advances over Creighton, a private Jesuit university. URI’s broad speech policy and its “bias incident” policy regulating whatever is left behind by the harassment policy helps First Amendment-bound URI to the next round. 

3 Oregon v. 14 Iona

  • Oregon has a unique definition of “harassment.” This is not a compliment. “Unreasonable insults … that may reasonably cause emotional distress” are punishable. What is a “reasonable insult”? I don’t know either, and I suspect neither does the University of Oregon. The school’s 85 recent “Bias Response Team” investigations also indicate a campus climate hostile to student free speech. The Ducks move on in the bracket of Shame, and I didn’t even have to talk about their uniforms.

7 Michigan v. 10 Oklahoma St.

  • This one was close. Alliance Defending Freedom has sued both schools in recent years over violations of the First Amendment. In 2014 we represented Cowboys for Life, a prolife group at Oklahoma State forced to move its displays to other areas of the campus because some might be “offended,” and to place signs warning other students of the potential “offense.” The same year ADF also represented Young Americans for Liberty in a lawsuit against the University of Michigan when it denied student activity funding to the group because of its “political” views. Oklahoma St. advances narrowly on the strength of speech codes mandating “civility” in all exchanges and requiring advance permission for any expressive event.

2 Louisville v. 15 Jacksonville St.

  • Louisville claims the right to review and disallow any student poster or flyer in a residence hall before they are posted. This and other speech codes make it close. But there is no denying Jacksonville St. with its policy requiring 48 hour advance notice for any “public manifestation of welcome, approval, disapproval, protest, or conscience by a student or groups of students.” I’ve read this several times and I’m still not sure what it means. But it’s not constitutional.

Rest of the Midwest Regional:

This is a competitive region with a number of schools making a strong case to move on to the Final 4. Oregon makes it interesting with its But in the end, Iowa State’s impressively unconstitutional speech codes and its recent loss in the 8th Circuit trying to deny a pro-marijuana student group the use of the school’s logo – a case that drew the support of Christian, conservative and pro-life student groups in an amicus brief I filed last year – tips the scales to the Cyclones.

South Regional:

1 North Carolina v. 16 Texas Southern

  • UNC once tried to force a Christian fraternity to stop being so … Christian, prohibiting it from associating around shared religious views. But the school changed its policy in response to an ADF lawsuit. UNC has also corrected its written speech policies. Texas Southern, however, limits spontaneous student expression to certain speech zones and has a speech code policy that appears to prohibit harassment of oneself (?!). TSU pulls the upset.

8 Arkansas v. 9 Seton Hall

  • Arkansas has a policy requiring advance permission for any expressive event on campus and authorizing security fees to be charged based on the discretion of university police. These unconstitutional policies help Arkansas to advance over private Seton Hall. 

5 Minnesota v. 12 Middle Tennessee

  • Middle Tennessee St. broadly (and unconstitutionally) defines harassment so as to prohibit significant amounts of protected speech. But Minnesota’s has its own speech codes prohibiting words that create an “offensive environment,” denied student activity funding to a conservative magazine because it mocked terrorists, and its “Bias Response Team” couldn’t even define “Bias” or “Response.” That’s not good.

4 Butler v. 13 Winthrop

  • Neither school is truly deserving here as Butler is private and Winthrop’s public assembly policies appear to be better than most. But Winthrop’s limitation of assemblies to only certain areas helps it advance.

11 Kansas St. v. 11 Wake Forest (play-in)

  • Wake Forest may have some poor speech policies, but it’s a private school. The First Amendment doesn’t apply to it. It does, however, apply to Kansas St. And Kansas St. enforces an unconstitutional policy requiring student groups to pay for security when their speakers are “controversial,” i.e. when hecklers might want to “veto” them. In real life, Danny Manning and Wake have got this. But in the Bracket of Shame K. St. advances.

6 Cincinnati v. 11 Kansas St.

  • Cincinnati tried limiting student speech to less than .1% of the campus before a federal court ended its speech zone policy. The school still maintains broad and ill-defined speech codes that may chill student speech. The Bearcats slip by the Wildcats.

3 UCLA v 14 Kent St.

  • UCLA is currently caught in a controversy where it appears to be discouraging students from taking a course taught by a conservative professor on … free speech. While the school dropped a speech code in response to an ADF letter in 2012, it has other broad speech restrictions, including a UC systemwide campaign combatting “microaggressions” that earned the University of California system a Jefferson Muzzle award. UCLA advances.

7 Dayton v. 10 Wichita St.

  • Wichita St. retains broad speech codes that would allow punishment of student speech based merely on whether an individual would “tolerate it,” not any actual harm or interference with the student’s education, and requires a 72 hour comically named “notice of intent to … engage in first amendment activities” with the university police before any expressive event on campus. Against private Dayton it should be no Shocker that Wichita St. advances.

2 Kentucky v. 15 Northern Kentucky

  • In the Bracket of Shame, at least, this one is close. Northern Kentucky maintains speech codes that even prohibit self-harassment – or recklessly causing reasonable apprehension of emotional harm to … oneself. If you read that policy enough you will necessarily violate it. But Kentucky’s speech codes are equal to the task and it adds speech zone areas. UK even emailed students to ask how, but not whether, they’d like their speech zone restrictions on campus.

Rest of the South Regional:

UCLA is the clear cut winner to advance to the Final 4 – particularly when it is credited with the policies of its fellow UC system schools. Ironically, this is the same UC system whose chancellor, Janet Napolitano, wrote glowingly of the importance of protecting free speech on campus in the fall. But UC system policies and actions don’t match her rhetoric. But no university in the UC System has eliminated its speech codes to fully protect student speech. The UC System includes UC Berkeley, which, despite its decades-old reputation as the birthplace of the student free speech movement nearly burned itself down recently to avoid hearing a speaker, and UC Hastings, which terminated First Amendment rights of association for every student group rather than allow a small group of Christians to have Christian leaders. Is it fair to compel UCLA to be associated with the anti-freedom actions and policies of UC Berkeley and UC Hastings? Maybe not, but it’s consistent.

The Bracket of Shame Title:

There can be only 1 winner. And in an epic battle between UCLA and the University of California system and the University of Wisconsin, the Badgers ultimately come out on top. Year after year a UW system school finds itself on the other side of an ADF lawsuit. Perhaps it should be no surprise then that after their university has repeatedly imparted the message that some viewpoints are more valued than others, these UW students struggle to understand that both people who think like them and those who do not should both be entitled to their beliefs and to live them out. Teaching this civic understanding to the next generation should be a fundamental purpose of higher education. That many universities are failing to do so is a shame for all of us.  

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