Quote:
Originally Posted by Kevin
So you could make an argument for an ex post facto ad hoc review of speech to determine whether a group should be sanctioned for the content of their speech could pass strict scrutiny and keep a straight face?
Let's apply strict scrutiny.
Is the action narrowly tailored? Sure isn't -- in fact, it's amorphous and the power being asserted is seemingly limitless. If the University can impose social suspension because someone was offended, where does it draw the line?
Is there a compelling governmental goal? I think the school would assert that providing a safe and comfortable learning environment is a compelling governmental goal. Unfortunately, for them, the ability to do whatever they want on an ad hoc basis is not the least restrictive means available for them to accomplish their goal.
If the school is instituting social probation pending a review, they imply that the punishment could be more than social probation. There's nothing in the student code of conduct which allows this sort of action by the University. In fact, assuming that we can classify this apparel as "speech," the university has a policy in the Code of Conduct, (I read it) stating that the University powers won't be employed to inhibit speech.
I guess the University could argue that this wasn't speech at all, but how many times have we seen the Supreme Court hold otherwise regarding apparel being speech?
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One of the first things you learn in a law class is that if you apply strict scrutiny 99% of the time whatever you're dealing with is unconstitutional. The issue is that the courts don't always use that standard, and it's difficult to predict when they will.