Free Speech and Expression Rights of Students

2010-12-30 08:42:35 by admin

Students in public colleges and universities enjoy a constitutional right to free speech under the First Amendment. Even so, the nature of this right varies greatly depending on the context in which students raise speech claims. Student organizations also enjoy First Amendment protection. Once public institutions create limited open forums for student groups, officials may not deny recognition to particular groups based on the groups’ viewpoints. Yet because the right to freedom of expression is not absolute in higher education, the courts have permitted officials to impose reasonable time, manner, and place regulations on the speech of students and their organizations. In light of the array of issues that have arisen on campuses, this entry highlights key litigation dealing with the First Amendment speech and expression rights of students in public colleges and universities.

Free Speech Rights of Student Organizations

In Healy v. James (1972), the Supreme Court addressed its first case on the constitutional rights of student organizations in public colleges and universities. Officials at Central Connecticut State College refused to recognize a local chapter of Students for a Democratic Society (SDS) due to their concern that the group’s philosophy was contrary to the college’s official policy. Recognition would have entitled the group to a variety of privileges, including access to campus bulletin boards and the right to use campus facilities for meetings. After a federal trial court upheld the action of officials denying SDS recognition, a divided Second Circuit affirmed. On further review, the U.S. Supreme Court reversed in favor of SDS, observing that state colleges and universities are not enclaves immune from the sweep of the First Amendment. The Court ruled that college officials could not restrict a group’s speech or right to associate simply because they found the group’s views to be abhorrent. Still, the Court added that administrators in public institutions may require student groups seeking official recognition to affirm in advance their willingness to abide by reasonable regulations to prevent campus disruptions.

Almost a decade later, in Widmar v. Vincent (1981), a Christian student group at the University of Missouri at Kansas City challenged officials who denied them the use of campus facilities for their meetings. Officials denied access on the ground that granting it would have run afoul of the Establishment Clause. After a trial court granted the university’s motion for summary judgment, the Eighth Circuit reversed in favor of the group. The Supreme Court then affirmed in favor of the group. The Court reasoned that because university officials recognized more than 100 campus groups, they created an open forum whereby student groups expressing all sorts of views were permitted to use campus facilities. Having created such a forum, the Court declared, officials could not deny recognition to a group based on the content of its views. Further, the Court decided that university officials would not have violated the Establishment Clause simply by granting the religious group the same privileges and benefits that it offered other organizations.

Together, Healy and Widmar set the stage for constitutional litigation by student groups that were banned from participating in campus life based on their viewpoints. In particular, a string of federal cases resolved during the 1970s and 1980s agreed that once administrators at public colleges and universities officially recognized other student groups, they were required to grant the same benefits to organizations of gay students.

In Gay Student Services v. Texas A&M University (1984), for example, a gay group sued Texas A&M University (TAMU) after officials rejected its application for official recognition. Citing Healy, the Fifth Circuit stated that disagreement with the group’s philosophy did not provide officials at TAMU with a legal basis for denying official recognition to the organization. Citing Widmar, the court noted that because TAMU officials had created a forum of student groups, they could not exclude the gay student group due to the content of its speech.

Expression of Controversial Views

In addition to cases involving officials’ refusal to recognize selected student groups, litigation has addressed the constitutionality of regulations restricting the expressive activities of student groups with controversial views. In such a case, Justice for All v. Faulkner (2005), officials at the University of Texas refused to allow a recognized antiabortion student group to distribute flyers unless the material identified the sponsoring group by name. Affirming an earlier order in favor of the group, the Fifth Circuit pointed out not only that the First Amendment protects anonymous speech but also that the university policy was not narrowly tailored to minimize infringement on the group’s constitutional right to engage in anonymous speech.

Pro-Life Cougars v. University of Houston (2003), another dispute between a prolife student group and university officials, arose when the organization sued the University of Houston, alleging that its “Disruption of University Operations and Events” policy violated the group’s First Amendment rights. Under the policy, student groups requesting permits to conduct an expressive event were required to apply for permission from the dean of students, who had sole discretion to evaluate whether an event was “potentially disruptive”; in such a situation, the dean could assign the group to one of two relatively remote sites. After the dean directed the group to meet in a remote location because its meeting was “potentially disruptive,” the students filed suit, causing officials to amend the policy in an attempt to have the litigation dismissed as moot. In rejecting the university motion to dismiss, a federal trial court in Texas invalidated the policy as unconstitutional on the grounds that it was overbroad and gave the dean of students unfettered discretion to evaluate which student groups’ expressive events were “potentially disruptive.”

“Fighting Words”

College and university officials are not required to tolerate “fighting words” on their campuses, even in public outdoor areas that are generally open for expressive activities. In Gilles v. Davis (2005), campus police officers arrested a nonstudent “campus evangelist” for directing comments to a woman who identified herself as a “Christian and a lesbian.” According to the Third Circuit, the evangelist’s epithets and statements to the woman, including “Christian lesbo,” “lesbian for Jesus,” “Do you lay down with dogs?” and “Are you a bestiality lover?” were “fighting words.” As such, the court affirmed that the police could arrest the man for disorderly conduct even though other parts of his speech were less provocative.

First Amendment Right of Association

As illustrated by Pi Lambda Phi v. University of Pittsburgh (2000), student groups have challenged restrictions on their activities on the grounds that institutional policies infringed on their constitutional right to association. In Pi Lambda Phi, a fraternity sued university officials for revoking its status as a recognized student organization after a police raid led to the arrest of fraternity members for possession of illegal drugs. The fraternity unsuccessfully argued that university officials and the police had violated its First Amendment right of association. The Third Circuit affirmed that the fraternity was neither an intimate association such as a family nor an expressive association formed to advance a political or social viewpoint or to engage in the free exercise of religion. Rather, the court viewed the fraternity as merely a social group that enjoyed no associational rights under the First Amendment. In any event, the court added that the revocation of the fraternity’s charter was triggered by its members’ drug activities, which had no constitutionally protected expressive element.

Two cases illustrate that courts do not always agree even in similar factual situations. In Christian Legal Society v. Walker (2006), a student group at a public law school in Illinois sued the dean for revoking its recognition due to the group’s rule against admitting students who engage in homosexual activity; the law school saw this rule as a violation of university nondiscrimination policies. The Seventh Circuit ruled that because the group was an expressive association that believed that sexual activity outside of marriage between a man and a woman was immoral, it was constitutionally entitled to exclude individuals whose views were contrary to its core beliefs. Conversely, the Ninth Circuit upheld the action of the dean at a public law school in California who denied funding to the local chapter of the Christian Legal Society because of restrictions in its by-laws related to religion and sexual orientation that violated the university’s nondiscrimination policy (Christian Legal Society Chapter of University of California v. Kane, 2009). Insofar as splits such as these between Federal Circuit courts often make their way to the Supreme Court, it bears watching to see whether the justices will accept an appeal to resolve the disagreement between the federal circuits.

Student Activity Fees and University Regulation of Extracurricular Activities

Mandatory student activity fees raise two types of First Amendment concerns at public colleges or universities. The initial First Amendment issue arises when public institutions require students to pay activities fees to fund student organizations engaged in activities or speech with which they disagree. Another First Amendment issue concerns when public institutions use activities fees to benefit student religious organization. The Supreme Court has addressed and resolved both of these issues.

In Board of Regents of the University of Wisconsin System v. Southworth (2000), the Supreme Court ruled that it was allowable for a university to institute mandatory student fees and to distribute this money to a variety of student organizations as long as resource allocations are viewpointneutral. From the Court’s perspective, institutional interests in fostering a wide variety of extracurricular groups outweighed any burden that might fall on students’ First Amendment rights. The Court rejected allegations that students may have been compelled to fund organizations that they did not support.

Earlier, in Rosenberger v. Rector and Visitors of the University of Virginia (1995), a student group had filed suit after university officials refused to pay its printing bill for a publication on the ground that doing so would have violated the Establishment Clause. Ruling in favor of the group, the Supreme Court explained that paying for the printing did not violate the Establishment Clause as long as the activity funding program was viewpoint-neutral and benefited a wide spectrum of student organizations.

In the issue addressed in Flint v. Dennison (2007), officials at the University of Montana disqualified a candidate for a student senate seat for exceeding the $100 limit on campaign expenditures. In rejecting the student’s First Amendment challenge, the Ninth Circuit affirmed that because the election process was a limited public forum, the campaign expenditure limitation was a reasonable, viewpoint-neutral regulation.

Hate Speech Codes and Sanctions for Derogatory Speech

Students have had some success challenging hate speech codes. In Doe v. University of Michigan (1989), a federal trial court agreed with a graduate student who argued that the university’s speech code, which prohibited behavior, whether verbal or physical, that stigmatizes or victimizes individuals due to their of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status, was unconstitutionally overbroad. Similarly, in UWM Post v. Board of Regents of the University of Wisconsin System (1991), a federal trial court struck down an antidiscrimination policy as overbroad and vague. More recently, in DeJohn v. Temple University (2008), the Third Circuit affirmed that a sexual harassment policy was unconstitutional because it was facially overbroad, meaning that it did not make clear what was prohibited.

Dambrot v. Central Michigan University (1995) is the case that ensued when university officials dismissed a basketball coach for using a racial epithet in a motivational talk to players, a majority of whom were African Americans. When the coach sued university officials, arguing that his choice of the “N word” was constitutionally protected, team members joined the suit, alleging that the harassment policy under which the coach was fired was unconstitutionally vague. While the Sixth Circuit agreed with the players that the policy was unconstitutionally vague, it upheld the coach’s dismissal, because he lacked a constitutional right to use a racial slur as his chosen means of motivating basketball players.

At issue in Murakowski v. University of Delaware (2008) was the appropriateness of disciplining a student for posting messages with violent themes about women on a Web site he maintained on the university’s computer system. The federal court observed that while university officials afforded the student a full Due Process Hearing prior to imposing discipline, because his Webbased prose was not a “true threat” for purposes of constitutional analysis and it had not caused a material or substantial disruption, the officials had violated his rights. The court concluded that because the student’s Web site musings were constitutionally protected by the First Amendment, he was entitled to $10 in nominal damages.

At issue in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993) was a fraternity’s “Ugly Woman” contest that campus officials deemed hostile to women. Although fraternity officials later apologized, university administrators imposed a two-year restriction on the group’s social activities. The Fourth Circuit was convinced that officials violated the fraternity’s rights in asserting that the low quality of the entertainment did not necessarily weigh in First Amendment inquiries.

Student Speech in the Academic Setting

Courts have often looked to litigation involving K–12 schools when addressing the free speech rights of college and university students. This trend is evident in a dispute from the Ninth Circuit, Brown v. Li (2002), perhaps the leading case on the speech rights of university students in academic settings. The dispute arose when a graduate student placed a two-page “Disacknowledgements” section in his master’s thesis after it had been approved by his committee. The Disacknowledgements made negative comments about various individuals, including university library staff, university administrators, the Regents of the University of California, and a former state governor. When faculty committee members learned of what the student had done, they refused to approve his thesis with the Disacknowledgements included. After several rounds of hearings, the student was allowed to graduate, but his thesis was not placed in the university library. Later, the student unsuccessfully sought an order directing officials to put his thesis in the university library, including the Disacknowledgements.

In a divided opinion, the Ninth Circuit upheld the actions of university officials. In its analysis, the court relied heavily on the Supreme Court’s judgment in Hazelwood School District v. Kuhlmeier (1988), in which it approved a school board’s placing restrictions on the content of a newspaper that students produced as part of a journalism class. In Hazelwood, the Court posited that educators may limit student speech in curricular activities as long as their actions are reasonably related to legitimate pedagogical concerns. To this end, the court interpreted Hazelwood as affording educators in public institutions the right to determine curricular content and to require students to comply with the terms of academic assignments. The court explicitly rejected the argument that Hazelwood was inapplicable in higher education.

A later case, Pugel v. Board of Trustees of the University of Illinois (2004), involved allegations of academic misconduct against a graduate student who also served as a teaching assistant. The student was accused of fabricating data for a research presentation at an academic conference. After an investigation and a hearing led to the student’s dismissal, she filed suit in a federal trial court, arguing that she was sanctioned in violation of her First Amendment right to free speech. In analyzing the case, the Seventh Circuit applied the balancing test articulated in Pickering v. Board of Education (1969), a dispute involving the free speech rights of public school teachers to speak out as citizens on matters of public concern. The court weighed the student’s First Amendment rights against the university’s interest in maintaining the integrity of academic research and concluded that the university’s interests outweighed any constitutional interest that the student might have had in making a research presentation that officials determined to be Fraudulent.


College students have brought free speech claims against officials at public colleges and universities in a wide range of factual contexts. Student have claimed a constitutional right to association and to official recognition of their student organizations by public universities, have challenged the manner in which officials disburse student activity fees, have disputed hate-speech policies, and have complained about the policies that officials have applied to regulate on-campus expressive events. Many of the cases involving college students’ free speech rights have been brought by student organizations rather than individual students, while only a few have involved a student’s free speech rights in the academic setting. In addressing the free speech claims of individual students, judges have frequently relied on Supreme Court cases that arose from constitutional disputes in the K–12 school environments, a trend that is likely to continue.

Richard Fossey

See also Papish v. Board of Curators of the University of Missouri; Student Press

Further Readings

  • Pauken, P. (2005). Student speech. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 235–255). Dayton, OH: Education Law Association.

Legal Citations

  • Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000).
  • Brown v. Li, 308 F. 3d 939 (9th Cir. 2002), cert. denied, 538 U.S. 908 (2003).
  • Christian Legal Society Chapter of University of California v. Kane, No. 06-15956, 2009 WL 693391 (9th Cir. March 17, 2009).
  • Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).
  • Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995).
  • DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008).
  • Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
  • Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007).
  • Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005).
  • Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
  • Healy v. James, 408 U.S. 169 (1972).
  • Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993).
  • Justice for All v. Faulkner, 410 F.3d 760 (5th Cir. 2005).
  • Murakowski v. University of Delaware, 575 F. Supp. 2d 571 (D. Del. 2008).
  • Pickering v. Board of Education, 391 U.S. 563 (1969).
  • Pi Lambda Phi v. University of Pittsburgh, 229 F.3d 435 (3d Cir. 2000).
  • Pro-Life Cougars v. University of Houston, 259 F. Supp. 2d 575 (S.D. Tex. 2003), appeal dismissed, 67 Fed. App’x. 251 (5th Cir. 2003).
  • Pugel v. Board of Trustees of the University of Illinois, 378 F.3d 659 (7th Cir. 2004).
  • Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).
  • UWM Post v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991).
  • Widmar v. Vincent, 454 U.S. 263 (1981).