Fostering Student Speech and Expression While Maintaining Campus Civility, Safety, and Functioning
Neal H. Hutchens
Pennsylvania State University
Pennsylvania State University
MONDAY, FEBRUARY 16, 2015 – 19:53
Periodically, students’ speech and expressive activities result in legal conflict in regard to institutional regulations designed to address when, where, and under what circumstances students may engage in speech and expression on campus. In one recent illustrative incident that attracted media attention, a community college in California faced a lawsuit after a student challenged institutional rules that restricted him from seeking signatures for petitions outside the college’s designated free speech zone (Masatani, 2014). The college settled the lawsuit, agreeing to pay the student and his attorneys $110,000 and to revise its speech policies to make most areas of campus available for speech and expressive activities. For this column, we examine legal conflicts that potentially arise over institutional rules related to the time, place, and manner of students’ speech and expressive activities on campus. Specifically, we focus on instances involving student speech or expression in seemingly ‘open’ or ‘public’ areas of campus, such as sidewalks or plazas, and when students must gain institutional approval to engage in activities that include handing out flyers or seeking signatures for petitions.
Overview of Legal Standards Impacting Student Speech
Public/Private Distinction, Contract, State Laws
Several legal factors determine the extent of student speech rights and accompanying levels of institutional authority to regulate student expression. An initial distinction often of legal significance involves a college or university’s status as public or private. Public institutions, unlike their private counterparts, must adhere to legal standards mandated under the First Amendment when exercising authority over student speech and expression.
At both public and private colleges and universities, standards derived from sources such as student handbooks are frequently legally relevant. While many courts are careful to avoid defining the student-institutional relationship as solely contractual in nature, contract standards provide a legal framework often used by courts to evaluate institutional actions. This includes in relation to student speech issues, where courts may turn to standards and rules articulated in student handbooks and codes of conduct to evaluate the permissibility of actions taken against students.
Private colleges and universities typically possess much greater discretion than public ones in exercising authority over student speech and expression. From a contract perspective, the key issue involves consistent treatment of students that aligns with established institutional policies and practices. Even while generally possessing greater discretion to regulate student speech, a private college or university must follow, in a fair manner, its own rules in the treatment of students to withstand legal scrutiny.
State laws and constitutional standards are also potentially germane in terms of the legal protections available for student speech and expression. At least one state, California, has a law that requires secular private colleges and universities to grant students the equivalent speech rights that exist for students at public institutions. State laws can also impact public colleges or universities by providing legal protections beyond those granted through federal constitutional provisions. For example, Illinois has mandated that public institutions must provide greater legal protections to student media than potentially provided under federal constitutional standards. Just as with contract standards, state law can play a meaningful role in terms of institutional authority to regulate aspects of student speech and expression.
The First Amendment
The dominant legal imperative for public colleges and universities in the realm of student speech and expression comes from the First Amendment to the United States Constitution. Tinker v. Des Moines School District (1969) stands as a foundational United States Supreme Court decision in this area. While involving secondary students, the legal rules and principles derived from the case have been extended to public higher education. In Tinker, the Supreme Court decided that high school officials could not prohibit students from wearing armbands as a means to engage in a form of silent protest to the military conflict in Vietnam. The court held that school officials could not restrict the speech unless it would substantially interfere with the educational environment or impair the rights of other students.
Campus areas often differ in relation to the First Amendment rights available for student speech and expression. Institutions are able to exert heightened authority over student speech in specific parts of campus, such as classrooms, libraries, offices, or auditoriums. That is, the nature of the campus location—or forum as it is often referred to in legal decisions—where speech occurs is often legally significant in determining the applicable speech rights available and the corresponding level of institutional control over aspects of such speech. Accordingly, some locations, or fora, on campus are subject to enhanced institutional authority because they have not been designated by the institution or traditionally recognized as some type of open forum for student speech and expression.
For example, classroom spaces—at least when class meetings are taking place—do not constitute locations that have been made generally open for student speech and expression. As such, courts have typically granted substantial authority on the part of public colleges and universities to regulate such learning environments to prohibit disruptions to the educational process. Other spaces on campus not generally open to unconstrained student speech and expression, at least at certain times or for certain purposes, include administrative offices, libraries, and locations for performances and athletic events.
In contrast, some places on campus can constitute places either traditionally recognized or designated by the institution as generally available for student speech and expression. The United States Supreme Court has recognized that students possess substantial First Amendment rights in such forums. A key legal decision establishing this principle is Healy v. James (1972). In this case, the Supreme Court—declaring that First Amendment protections apply to public college students’ speech—rejected the contention that a group of students suffered no First Amendment deprivation when they were denied access to use campus facilities in the same way as other student organizations because they could still meet off campus. The administration’s refusal to grant the organization the right to meet and distribute information on campus was based on fears that the group would engage in disruptive and violent behavior. According to the Supreme Court, while the university could require students to follow reasonable campus rules, it could not seek to silence students on the basis of expressing views disfavored by school officials.
An important point to emphasize is that campus spaces can serve multiple purposes, which means that student speech rights in a campus location can also shift. For instance, an auditorium might be made available at some times for students to reserve to engage in speech or expressive activities. At other times, this same auditorium could be used for performances or lectures and not be an open forum for student speech and expression. Similarly, a university may make classroom spaces available to students when not being used for instructional purposes. When classrooms are made available to students under such circumstances, the institution possesses less authority to regulate aspects of student speech and expression than would often be legally permitted during a class meeting. The remainder of this column will focus on student speech and expression in seemingly open or public areas of campus, including sidewalks and other walkways, courtyards, and other campus areas generally available to students.
The First Amendment and “Open” Campus Areas
Apart from spaces not considered open on a general basis for student speech activities unless by special designation—e.g., classrooms, auditoriums, libraries, and offices—what about the legal status of seemingly open or public areas of campus, such as sidewalks, courtyards, or plazas? Students may reason that, because these spaces are generally open for student use, they constitute fora for expression. This is not always the case. At times, public college and university officials have clashed with students over the legal classification of such spaces. This has led to legal disputes over the types of regulations that institutions are permitted to impose on student speech and expressive activities in such campus areas.
Some institutions have argued in litigation that the legal standards associated with limited or non-public fora should apply to these types of campus areas apart from designated free speech zones. Such a designation generally vests institutions with greater legal authority to control access to these campus spaces in relation to student speech and expressive activities. In contrast, students have contended that rules associated with the traditional or designated public forum should apply to many open areas of campus, at least in relation to students. A traditional or designated public forum is government-controlled property generally open for citizens to engage in speech activities, though still subject to content-neutral regulations based on time, place, or manner. Any type of content-based restriction on student speech or expression is typically subject to heightened legal scrutiny.
Issues related to exactly what kind of forum exists on particular areas of campus, specifically open areas, can be legally complex, at times requiring consultation with institutional legal counsel. Public colleges and universities should be aware that courts may be becoming increasingly wary of institutional efforts to characterize most campus areas as a limited or closed forum and then designate a relatively small free speech zone to serve as a designated public forum for student speech and expression.
An illustrative case involving the University of Cincinnati dealt with restrictions placed on open areas of campus that limited demonstrations, picketing, and rallies to a small portion of campus (University of Cincinnati Chapter of Young Americans for Liberty v. Williams, 2012). The university also required groups of students to provide at least five days notice before engaging in speech and expressive activities. The university argued that all of its campus area constituted a limited public forum in which requirements such as a prior notice could be imposed.
A federal district court in Ohio granted a preliminary injunction in favor of the students that halted the university’s enforcement of the standards. The court discussed in its order that more recent legal decisions, including from the Supreme Court, had treated open areas of campus at public colleges or universities as a designated public forum in relation to students. According to the court, it was unaware of any legal decisions that established that “a public university may constitutionally designate its entire campus as a limited public forum as applied to students” (p. 5). It stated in its order that permitting this level of institutional authority over student speech would be “anathema to the nature of a university,” which is supposed to serve as a marketplace for ideas (p. 5). In a later order, the court approved of a revised policy where student groups of less than 25 engaging in expressive activity such as collecting signatures did not need to gain prior approval or to obtain a permit for speech and expressive activities in the institution’s specified free speech zone as well as other open area of campus, such as plazas and sidewalks.
In another case, a federal court of appeals considered regulations at the University of Texas at Austin that prohibited anonymous leafleting (Justice for All v. Faulkner, 2004). The court held that open areas of a campus should be viewed as an open forum in terms of the student population. The university had contended that such campus spaces should be viewed as a limited public forum and subject to greater institutional control. Upholding the lower court’s decision in the case, the court of appeals determined that the university, as expressed in institutional rules and statements, had “given its students too broad a guarantee of expressive freedom now to claim it intended its campus to function as a limited public forum” (p. 769). In the case, the lower court had also discussed in its opinion that the weight of authority in previous legal decisions had determined that campus grounds (at least open spaces) constituted a type of public forum for student speech and expression. Under the standards applicable to such an open public forum, the court of appeals decided that a prohibition on anonymous leafleting was an unreasonable regulation on the part of the university.
In a case involving Oregon State University, another federal appeals court held that the institution had violated the First Amendment in restricting the placement of news bins for the distribution of a student newspaper produced by a recognized student organization (OSU Student Alliance v. Ray, 2012). Looking to the university’s own administrative rules, the court determined that public areas of campus constituted a designated public forum for students. Furthermore, the court discussed in its opinion how the rule enforced against the student organization and its newspaper was unpublished, unpublicized and applied selectively to only this one publication. Other publications available on campus, including another student newspaper, local newspapers and USA Today, were not subjected to the policy.
Even when courts provide substantial discretion to public colleges and universities to regulate what areas of campus are available for student speech and expressive activity (i.e., what spaces constitute a limited forum versus a designated public forum), institutions must enforce standards in an even-handed manner. Otherwise acceptable time, place, and manner restrictions must contain clear standards and be enforced fairly in relation to students and student organizations.
In responding to instances involving student speech and expression, colleges and universities are faced with more than parsing out specific legal standards for given situations. At its best, the higher education experience provides a unique time and place for students to stretch their intellectual boundaries and to engage in a process of discovery about themselves and the larger world. As part of this journey of intellectual examination and growth, an accompanying function of the collegiate experience is to help strengthen the ability of students to participate in and contribute to democratic society. At the same time, institutions must balance the interests and needs of other members of the campus community, including making sure that environments are safe and that other institutional activities aren’t unduly hampered. These commitments to encouraging the free exchange of ideas and fostering a civil, nurturing educational environment can at times come into conflict and create administrative difficulties for higher education institutions. Student affairs professionals are tasked with determining how best to strike a balance between these multiple interests without running afoul of applicable legal standards.
- To what extent and in what locations should colleges and universities be permitted to regulate student speech?
- Are there laws in your state that affect the way your institution must treat student speech? What are the implications of these laws for you as a student affairs professional?
- In what ways does your institution regulate student speech? Are these regulations applied in a fair and consistent manner?
- In what ways is it possible to cultivate a campus environment in which free speech and civility peacefully co-exist? How can student affairs professionals aid in creating this environment?
Healy v. James, 408 U.S. 169 (1972).
Justice for All v. Faulkner, 410 F.3d 760 (5th Cir. 2005).
Masatani, M. (2014, December 4). Citrus College to pay $110,000 to settle students First Amendment lawsuit. Pasadena Star-News. Retrieved from http://www.pasadenastarnews.com
OSU Student Alliance v. Ray, 699 F3d. 1053 (9th Cir. 2012).
Tinker v. Des Moines School District, 393 U.S. 503 (1969).
University of Cincinnati Chapter of Young Americans for Liberty v. Williams, 2012 WL 2160969, No. 1:12-CV-155 (S.D. Ohio June 12, 2012).
About the Authors
Neal H. Hutchens is an associate professor in the Higher Education Program at Pennsylvania State University.
Kaitlin Quigley is a Ph.D. student and graduate assistant in the Higher Education Program at Pennsylvania State University.
Please e-mail inquiries to Neal H. Hutchens.
The ideas expressed in this article are not necessarily those of the Developments editorial board or those of the ACPA Governing Board, Leadership, or International Office Staff.