FIRE Urges Ninth Circuit to Defend First Amendment

SAN FRANCISCO, January 13, 2010—Today, the Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief urging the United States Court of Appeals for the Ninth Circuit to uphold a July 2009 decision by a federal district court finding the Los Angeles Community College District’s (LACCD’s) speech code unconstitutional. LACCD’s code prohibits, among other things, "generalized sexist statements" and "actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men."

"Despite over two decades of federal jurisprudence finding policies precisely like LACCD’s unconstitutional, LACCD is shamefully attempting to deny its students the First Amendment rights to which they are legally entitled," FIRE President Greg Lukianoff said. "FIRE’s brief explains why the Ninth Circuit must affirm the district court’s decision and make LACCD’s sexual harassment policy the latest addition to an unbroken string of unconstitutional codes struck down in federal court."

The lawsuit against LACCD was filed in the United States District Court for the Central District of California in February 2009 by attorneys from the Alliance Defense Fund (ADF) on behalf of Los Angeles City College student Jonathan Lopez. Prior to filing suit, Lopez had been berated in his Speech 101 class by his professor, who disagreed with Lopez’s reference to his religious views and experiences. The professor refused to grade Lopez’s classwork, telling him to "Ask God what your grade is." Lopez’s ordeal received national attention.

In July 2009, United States District Judge George H. King granted Lopez a preliminary injunction barring LACCD from enforcing its sexual harassment policy, declaring that the policy violated the First Amendment rights of Lopez and his fellow students by "prohibit[ing] a substantial amount of protected free speech." In September 2009, Judge King denied LACCD’s motion for reconsideration of his earlier ruling. Judge King observed that LACCD "ha[d] shown no valid reason" to overturn the injunction, and he characterized LACCD’s arguments as "scattershot and disjointed." LACCD then appealed to the Ninth Circuit.

FIRE’s brief, filed by FIRE Legal Network attorney Timothy Smith, points out that LACCD’s policy contradicts both decades of legal precedent and the guidance of the federal Department of Education’s Office for Civil Rights, which is responsible for enforcing harassment laws on campus. FIRE’s brief argues that if LACCD’s policy were permitted to stand, it would gravely endanger the free speech rights of LACCD students and exacerbate the free speech crisis on America’s college campuses.

"By continuing to defend an indefensible and unconstitutional speech code with this appeal, LACCD has proven not only that it does not care about its students’ First Amendment rights, but that it doesn’t care about wasting taxpayer dollars to argue against the Bill of Rights in court," said Will Creeley, FIRE’s Director of Legal and Public Advocacy. "FIRE is confident that the Ninth Circuit will recognize the impermissible flaws in LACCD’s policy and reject this misguided appeal."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at

Will Creeley, Director of Legal and Public Advocacy, FIRE: 212-582-3191; [email protected]

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