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.