Professor Jordan Peterson contra Linfield College: Student Free Speech Rights in the Academic Setting

While the culture war headlines have focused on Ann Coulter and her headaches with the University of California-Berkley, a more significant development has erupted to the north on the campus of Linfield College, a small private liberal arts college in McMinnville, Oregon. Jordan Peterson, a University of Toronto professor of Psychology,  was recently disinvited from a previously arranged speaking arrangement by Linfield College Administration and the Student Government Association. Jordan has gained notoriety of late due to his opposition to the Canadian Governments Bill C-16 which proposes to amend the Canadian Criminal Code to extend the protection against "hate propaganda" to gender identity or expression, allowing the prosecution to set out evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression. In its dis-invitation, the Linfield Administration expressed concern that Jordan was fostering "intimidation" and the "threat of force" with his presence on campus, citing a tweet made by Jordan that he would be soon invading "safe spaces" on the campus. The event took place, nevertheless, at an off-campus venue, to great fanfare (.https://www.youtube.com/watch?v=gnQw01x6hs0) in the McMinnville Community.


Such issues as have dogged Coulter and Jordan raise questions about a student's right to hear controversial speakers or to otherwise engage in dialogue on subjects of controversy in an academic setting. The watershed case in this area of the law remains Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In that case, which involved symbolic speech where students sought to wear armbands in opposition to the Vietnam War, the Supreme Court held for the first time that the First Amendment definitively applied to the public school setting. As such, public schools that sought to limit constitutionally protected free speech would have to demonstrate compelling reasons that the schools restriction of student speech was caused by something more than a mere desire to "avoid the discomfort and unpleasantness that always accompany[ies] an unpopular viewpoint." To meet such a burden, the public school would have to demonstrate that the speech, if allowed to proceed unfettered would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."


Applied to the primary and secondary school setting, the courts have upheld a variety of restrictions that impose time, place and manner limitations on student expression where it could be shown that the speech activity materially would disrupt the functioning of or the safety of students within the school. See e.g., Taylor v. Roswell Indep. Sch. Dist, 713 F.3d 25 (10th Cir. N.M. 2013) Students' free speech challenges denied because the speech caused substantial disruption); Wiemerslage v. Maine Tp. High School Dist. 207, 29 F.3d 1149 (7th Cir. 1994) (Speech restrictions on student expression upheld where concerns about safety or property damage). However, such restrictions cannot normally be premised on the potential reaction of others to a planned free speech expression. See Zamecnik v. Indian Prairie School Dist. #204, 636 F.3d 874 (7th Cir. Ill. 2011) (restriction on student from wearing "Be Happy, Not Gay" t-shirt held improper absent evidence that attire would  provoke a substantial disruption at the school).


To date, the Supreme Court has not extended its student speech holdings to the college campus. A recent 9th Circuit case has found first amendment claims in a case involving California State-Fresno, which could give rise to a claim of a First Amendment relation claim. See O'Brien v. Welty, 818 F.3d 920 (9th Cir. Cal. 2016); See also Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 869 (9th Cir. Ariz. 2016) Moreover, it is important to note that private academic institutions are immune to First Amendment restrictions on censorship and may limit speech as the institution sees fit. This would seemingly be of significant importance when evaluating the free speech restrictions imposed by a private college campus such as Linfield College.


However, the analysis is not that simple.


Given the proclivity of many academic institutions to seek funding wherever they can get it, hardly any institution is completely financially independent of the state or federal government, particularly when it comes to the funding of student aid. As has been noted previously in this blog, the Obama Administration, using federal funding as a pretext, has sought to extend Title IX, the law setting forth gender equity requirements upon  schools receiving federal funding, to transgender students in such schools. If Title IX applies to schools banning gender discrimination on the basis of federal funding, then surely the First Amendment would apply to private schools that similarly receive federal funding. Linfield is such an institution in as much as it incorporates federally issued student loans as part of its overall financial aid commitment to students who attend Linfield College.


By deliberately denying student right of expression, either directly, or, as in the Linfield College case, indirectly by disinviting a speaker whose opinions might offend persons at the college or in the college community, private institutions of higher learning such as Linfield College do a disservice to their own core mission of fostering intellectual discourse. Less significantly but of importance is the additional concern that such censorship of free speech also runs the significant risk of inviting costly litigation that any college would be wise to avoid.

Juvenile Court, Parental Fitness, and Conferral of Custody to Third Parties: Why Parents May be Found Unfit at Adjudication

Before a child can be placed in the custody of a third-party non-parent, both North Carolina General Statute Chapter 7B and Chapter 50 require a finding of parental unfitness or a finding that a parent's actions have been inconsistent with their constitutionally guaranteed status as a parent. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972); Price v. Howard, 346 N.C. 68 (N.C. 1997). In the recent unpublished case of In re C.P.,__ N.C.App.__,
__S.E.2d__ (N.C. App. March 7, 2017), the Court of Appeals confronted this very issue where a trial court awarded custody of a minor in a juvenile case to a third party relative.


In its opinion affirming the trial court's order, the appellate court noted the trial court's findings that the mother had made some significant, if late breaking progress in her case correcting issues that led to the involvement of the Mecklenburg County Department of Youth and Family Services. Nevertheless, despite these findings, the trial  court concluded that the best interest of the juvenile would be served by conferral of custody upon a third party relative. Curiously, the Respondent Mother, whose custodial rights were further compromised  by conferral of custody to this third party, made no objection to the fact that the trial court failed to make an affirmative finding of unfitness or behavior inconsistent with the parent's protected status.  The Court of Appeals surely noted this and when the Respondent Mother raised this issue for the first time on appeal, the reviewing panel refused to consider the argument, noting merely that a parent who failed to object to a trial court's failure to make a determination of his or her constitutionally protected status waives that right if the parent does not raise the issue before the trial court. See In re T.P., 217 N.C. App.181, 186, 718 S.E.2d 716, 719 (2011).

But the fact remains that the trial court may not have had to make such a finding even if the issue had been raised.

Unlike in a North Carolina Chapter 50 case, a Chapter 7B case requires an adjudication of a child as being either abused, neglected, or dependent. While certainly an argument exists that the dependency of a child may have little to nothing to do with a culpable parent, the same cannot be said for neglect or abuse which at their heart require either tortious or criminal conduct (in the case of abuse) or conduct which either actively hostile to a child's well-being (i.e. failure to provide adequate case, supervision, or discipline) or passively so (i.e. creating an injurious environment). In either case, depending upon the parent's level of culpability, an adjudication or either abuse or neglect, could it would seem, amount to per se unfitness in the case of abuse or per se inconsistent behavior in the case of neglect.

Protection of the family unit is an absolute right guaranteed by the due process and equal protection clauses, a protection which will remain undisturbed "absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children[.]" Petersen v. Rogers, 37 N.C. 397, 445 S.E.2d 901 (1994).  "Th[is] protected liberty interest complements the responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child." Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003).  However, this presumption is erased where a parent "fails to shoulder the responsibilities that are attendant to rearing a child." Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997). 

As the Supreme Court noted in Owenby, a finding under any of the provisions in section 7B-1111 will result in a parent "forfeit[ing] his or her constitutionally protected status." Owenby, 357 N.C. at 145, 529 S.E.2d at 267. When the protection of the parental presumption is lost, the trial court may then ask the lower threshold question of what is the "best interest of the child." Id. at 146, 579 S.E.2d at 267. A court making a finding that abuse or neglect has transpired affecting a child as it is defined by North Carolina General Statute 7B-101, invokes the  same definitions that inform the grounds for termination found at North Carolina 7B-1001, the same grounds the North Carolina Supreme Court has clearly held lead to a forfeiture of parental rights.

With all the above having been said, consider this: the legislature has recently provided an immediate ability to cease reunification efforts following adjudication pursuant to North Carolina General Statute 7B-901 (e.g., sexual abuse, chronic physical or emotional abuse, torture, abandonment, chronic or toxic exposure to alcohol or controlled substances). Given the holding of Owenby and these new statutes which deeply impact a parent's ability to work a DSS case plan or take make any effort to reunify with their child, a strong case exists to suggest that a judicial finding that 7B-901 factors of abuse or neglect exist in a case is tantamount to a finding of parental unfitness or parental actions inconsistent with  constitutionally protected parental status. Thus, the C.P. trial court's failure to find unfitness may have been fatal if the issue had been raised by the parent on the trial level, it may not always be so in cases where the neglect or abuse is of a more elevated and profound character.  

N.C. Senate Bill 594: Social Service Delivery Reform at Devasting Cost to County Authority and Budgets

The newly introduced Family/ Child Protection and Accountability Act, Senate Bill 594, purports to bring sweeping reform to the North Carolina child welfare system. Citing North Carolina’s dismal performance in both state and federal audits, the bill seeks to reorganize county departments of social services by regionalizing the delivery of services and placing direction and authority over social services delivery in the hands of the State of North Carolina.  Introduced on April 4, 2017, the bill already has its advocates. Most notably, Michelle Hughes of the N.C. Child advocacy organization, claims among other things that North Carolina’s child welfare system is failing and that the proposed legislation will lead to “modernized case management”; provide “real-time data about children in foster care” and reduce social worker caseloads.  

The reality is somewhat different from what the bill’s sponsors and Ms. Hughes portray.

First, it should be noted that regionalization is one of the failed parlor tricks of the North Carolina General assembly, demonstrated most notably by the State’s regionalization of the mental health system in the past decade.  Starting initially in 2001 with the separation of mental health management from mental health service provision, the State later embraced the consolidation of metal health management into regional Local Mental Health Entities (LME’s) through the use of the Medicaid 1915 (b)(c) Waiver Program. The results of this consolidation were devastating to many counties within the State where service provision diminished, the spectrum of services available to mental health clients diminished, and the overall quality of services being provided diminished.

Second, the current legislation, embracing E.F. Schumaker’s “small is beautiful” mantra, regionalizes by consolidating 100 current county based social service agencies into 30 regional agencies. Considering that most social services spending in counties has millions of dollars of impact, taking away this influx of cash from the economies of 2/3 of the counties surely will do much to stunt economic growth at a time when the economy is just starting once again to fill county coffers.

Third, while Senate Bill 594 gives lip service to local service provision and preserving existing judicial districts where legal action is necessary, the bill is sparse when it comes to the details. Exactly how does a regional entity provide localized services to populations who frequently don’t have basic transportation?  This question remains unanswered as does the question of how a regional agency can effectively carry out its necessary child welfare, child support and adult protective services legal functions when its territory takes  in multiple judicial districts.

Most problematic of all is Senate Bill 594’s seeming inability to recognize the root of the problem of social services delivery in North Carolina. As any educator knows, a student’s academic failure cannot necessary be solved by merely blaming the student. Certainly some of the blame does accrue to the student. However, questions must also be asked about the standards used to measure the student’s performance as well as the methodology used by the instructor to teach the student.

Senate Bill 594 dispenses with such inquiries and assumes without argument,that the problem must be with the counties. But isn’t the State of North Carolina somewhat to blame as well? And could it be possible that the federal audit failure was the result of an instrument that was designed to lead to failure?

Such questions must be asked before the legislature rushes headlong to pass a measure which will divest the counties of their statutory authority over social services delivery, and takes away a major source of their income.