The Pomp and Circumstance Marches
Colleges and universities are gearing up for commencement. However, on some of our campuses the pomp and circumstance march will not be in academic regalia. Instead, we may face marches of students, alumni, and guests who are protesting the invitation of the school’s commencement speaker.
The pomp and circumstance march is not a new phenomenon. According to the Chronicle of Higher Education, “controversies over commencement speakers are practically an annual tradition on college campuses” (Anonymous, 2014). The reasoning for pomped-up protests have included disdain over a speaker’s actions while in political office, objections about public expressions over social and political matters such as individual rights or war, and disapproval (June, 2014).
This article touches on the student rights and conduct concerns involving pomped-up protest through what is known in law as the Heckler’s Veto. Heckler’s Veto is conduct that inhibits the free speech rights of the speaker in response to an opposing individual or party’s protest reactions (Daniel, Gee, Sun, & Pauken, 2012). In situations involving a commencement speaker, a Heckler’s Veto prevails when a public college curtails the speech in reaction to protest tactics such as chanting, rallying, name calling, rabble-rousing, or thrown objects (Daniel, Gee, Sun, & Pauken, 2012).
Supporting a Heckler’s Veto potentially counters First Amendment principles of free speech (Daniel, Gee, Sun, & Pauken, 2012). In other words, it is not consistent with the First Amendment. As a federal appellate court once explained in non-education case, a Heckler’s Veto “would empower an audience [or others in a crowd] to cut off the expression of a speaker with whom it disagreed” (Glasson v. City of Louisville, 1975, 905-906). In essence, a Heckler’s Veto rewards “community hostility and threats of violence to justify censorship” (Glasson v. City of Louisville, 1975, 906). Therefore, public colleges may only address the conduct that is not protected under the First Amendment, such as expressions or activities that:
- actually are or likely to lead to substantial disruption of the educational purpose;
- true threats in which serious messages of one’s intent to commit an unlawful act of violence onto a particular individual or group of individuals;
- incite the audience to engage or leading to imminent physical harm; or
- are obscene expressions that an average community member would say appeal to prurient interest, are patently offensive, and lacks value (in a social, political, scientific sense).
For public colleges, the challenge is that they “are taxed with a dual responsibility to permit the free expression of ideas on campus while providing the safety and security of their students” (Rock for Life – UMBC v. Hrabowski, 2010, p. 555). Thus, public colleges must consider the rights of the speaker, the audience, the hecklers, and the institution.
Because of its legal origins (i.e., constitutional rights drawn from the First Amendment), the Heckler’s Veto may not strictly apply to private colleges. The First Amendment precludes government from creating policies or taking other actions that abridges one’s freedom of speech. Thus, public colleges, which are also government entities, must comply with constitutional standards in developing policies and procedures and engaging in practices involving their operations.
Given the legal distinctions between private and public colleges, it’s not surprising that private colleges have much greater discretion in terms of oversight and regulation of its campus environment (Daniel, Gee, Sun, & Pauken, 2012). Typically, private colleges would refer to its student code of conduct and other campus policies to determine the student rights and conduct regulations. These decisions are largely analogous to or actually treated as contract terms. These policies may resemble First Amendment rights, so the principles discussed below are relevant to many college campuses. Further, on occasion, a special law such as the situation in California may govern a private college’s policies regarding student expressions that require adherence to certain legal principles of the First Amendment’s free speech provisions.
While there are differences between public and private colleges in terms of free speech, the academic environment should, regardless of its organizational form, foster an open dialogue and maintain its status as the space for the marketplace of ideas. Thus, we should avoid activities that suppress speech.
Conclusion and Discussion Questions
Here are some basic guidelines that we should consider when we have veto attempts from hecklers.
- Review the actions of the hecklers. Are they creating a disruptive environment that substantially interferes with the purpose of the event? Are there conduct matters of concern such as events leading to physical harm, obscene gestures or other expressions, or events leading to incitement or imminent harm that is likely to occur? What recourse might you have to maintain order? Are there any opportunities to educate the audience and the hecklers?
- Examine what the speaker is expressing that may create harm. Ask yourself the same questions as the hecklers, but keep in mind that you should avoid rewarding the Heckler’s Veto.
- Consider the rights of the audience such as the graduates and their guests. How might you articulate their rights to gather for the event and be present to hear the speech as well as engage in the commencement ceremony?
Notes For instance, California has law, known as the Leonard Law, which states in pertinent part: “No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” Cal. Educ. Code § 94367 (2014). This provision does not apply to religious postsecondary institutions when its application is not consistent with the religious tenets of the institution.
Anonymous (2014, May 20). A field guide to this spring’s commencement-speaker outrage. Chronicle of Higher Education. Retrieved from http://chronicle.com/article/A-Field-Guide-to-This-Springs/146687/
Daniel, P. T. K., Gee, E. G., Sun, J. C., & Pauken, P. D. (2012). Law, policy, and higher education: Cases and materials. New Providence, NJ: LexisNexis.
Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975).
June, A. W. (2014, May 7). The perils of picking a commencement speaker. Chronicle of Higher Education. Retrieved from http://chronicle.com/article/The-Perils-of-Picking-a/146421/
Rock for Life – UMBC v. Hrabowski, 411 Fed. App’x 541 (4th Cir. 2010).
About the Author
Jeffrey C. Sun, J.D., Ph.D. is Professor of Higher Education and Assistant Chair in the Department of Leadership, Foundations, & Human Resource Education at the University of Louisville.
Please e-mail inquiries to Jeffrey C. Sun.
The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.