Fourth Circuit Rules that University's Preliminary Inquiry into Harssment Complaint Does Not Violate Free Speech

Though not precisely a Title IX decision in the usual type for this blog, I was interested in this decision I read recently affirming a university's preliminary investigation of harassment charges stemming from an intentionally provocative student-organized campus event.

The event in question was orchestrated by a student at the University of South Carolina on behalf of student groups seeking to protest their perception of censorship on campus and beyond. The student sought and received the university's permission to hold the event, which showcased symbols like the swastika and posters of racial slurs. University officials also defended the event to those who complained and argued that it was inappropriate. Later, the university received several complaints that the event constituted discrimination and harassment because of the symbols and slurs that it promoted, and because of alleged hostile behavior the encountered there.  University officials called the organizing student, who was named in the complaint, in for a 30-45 minute meeting to discuss the complaints.  A few weeks later, the university informed the student that it had concluded it had no basis for going forward with an investigation.

Nevertheless the student sued the university alleging violation of free speech. Yes, even though the university permitted the event, defended it, and declined to even open a formal investigation of the complaints others made about it, the student alleged that the university's preliminary inquiry into the complaints about the event violated the student's rights under First Amendment. Last week, however, the Fourth Circuit Court of Appeals affirmed the district court's dismissal of this case, rejecting arguments that the preliminary inquiry causes an unconstitutional chilling effect of free speech and is more intervention than necessary to protect the university's interests.

When a university receives a complaint or other information that harassment on the basis of sex, race, or some protected class has occurred, civil rights laws like Title IX require the university to respond in some way. Otherwise, the university could be liable for deliberate indifference. This doesn't mean the university must engage in a disciplinary response every time it receives a complaint. It should, however, do some kind of preliminary investigation to determine if the complaint warrants pursuing. At the very least, this can mean having a conversation with the person named in the complaint to get that person's side of the story, which is what the university did here.

The court's ruling affirms that a preliminary inquiry like the one in this case does not violate the free speech rights of the student against whom the complaint is made. In fact, it protects respondents' rights, since it provides an alternative to a formal investigation in response to every complaint. In my view, the only world in which a university can't even engage in a preliminary inquiry of a harassment complaint is one in which the university can't censored and sanction harassing speech at all (presumably, this is the student's position, since why else would he sue on these facts?).  But as courts have already held, and as this one affirms, there is an outer limit to free speech: harassment that is sufficiently severe and pervasive and disruptive of other students' civil rights in education.    

The student's free speech event at USC apparently did not cross that line, but the university was right to at least follow up with the complaints that said it did.

Decision: Abbott v. Pastides, 2018 WL 3910682 (Aug. 16, 2018).