I. Freedom of Expression at Public Universities
That the First Amendment applies on the public university campus is settled law. Public universities have long occupied a special niche in the Supreme Court’s First Amendment jurisprudence. Indeed, the Court has held that First Amendment protections on campus are necessary for the preservation of our democracy.
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)
In Sweezy, the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the state university concerning the Progressive Party of the United States. In holding for the teacher, the Court wrote eloquently that:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation… Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
Keyishian v. Board of Regents, State Univ. of N.Y., 385 U.S. 589 (1967)
In Keyishian, the Court declared unconstitutional New York statutes and administrative rules designed to prevent employment of “subversive” teachers and professors in state educational institutions and to dismiss them if found guilty of “treasonable or seditious” acts. The Board of Regents of New York had prepared a list of subversive organizations, including the Communist Party, and determined that membership in these organizations was sufficient reason for a teacher’s disqualification. The Court held that the proscription of “treasonable or seditious” conduct and of “advocacy” of violent overthrow was unconstitutional for vagueness: A teacher could not foretell whether statements about abstract doctrine were prohibited, or whether only speech intended to incite action was grounds for dismissal. The Court observed:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.
Healy v. James, 408 U.S. 169, 180 (1972)
Central Connecticut State College’s president had denied official status to a left-wing student group associated with violence on other campuses. The president said the group’s philosophy was “antithetical to the school’s policies,” its independence from the national organization was “doubtful,” and it “would be a disruptive influence at the college.” Without official status, the group could not announce its activities in the campus newspaper, post notices on college bulletin boards or use campus facilities for meetings. In this decision, the Court first affirmed public college students’ First Amendment rights of free speech and association, saying those constitutional protections apply with the same force on a state university campus as in the larger community. The Court stated:
[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973)
Papish concerned a University of Missouri student distributing an underground student newspaper which contained an article entitled “Motherfucker Acquitted,” concerning the acquittal of a member of the radical group “Up Against the Wall, Motherfucker.” The student distributing the paper was expelled under a code of conduct that required students “to observe generally accepted standards of conduct” and prohibited “indecent conduct or speech.” The Court held that “the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”
Widmar v. Vincent, 454 U.S. 263 (1981)
The University of Missouri at Kansas City ruled that its facilities could not be used by student groups “for purposes of religious worship or religious teaching,” believed that this prohibition was required under the Establishment Clause. A student religious group that had previously been permitted to use the facilities sued the school after being informed of the change in policy, asserting that their First Amendment rights to religious free exercise and free speech were being violated. The Court’s decision ensured greater access to public facilities by religious organizations, and held that the state was not assumed to be in support of all messages that were communicated in their facilities. In so ruling, the Court reaffirmed its consistent recognition of the applicability of the First Amendment to the public university, concluding that “With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”
II. Freedom of Expression at Private Universities
Unlike public universities, which are of course government actors, private universities are not legally obligated to uphold the First Amendment rights of students on campus. In fact, private universities have a First Amendment freedom of assembly right to determine for themselves the terms of matriculation, within certain legal limits. However, many-in fact, most-private colleges and universities advertise themselves as bastions of free and liberal learning, where all viewpoints can be expressed, discussed, and debated. Most private universities promise their students extensive speech rights in school materials such as student handbooks, recruiting brochures, and codes of conduct.
When a school, public or private, makes a promise to a student-whether in a student handbook or a brochure or a speech from the president-that school is morally and legally bound to honor that promise. Courts have held in several cases that private institutions must live up to these types of promises, based on a “contract theory.” See Havlik v. Johnson & Wales University, 509 F.3d 25, 34 (1st Cir. 2007) (“The relevant terms of the contractual relationship between a student and a university typically include language found in the university’s student handbook….We interpret such contractual terms in accordance with the parties’ reasonable expectations, giving those terms the meaning that the university reasonably should expect the student to take from them.”); Ross v. Creighton University, 957 F.2d 410, 416 (7th Cir. 1992) (“It is held generally in the United States that the ‘basic legal relation between a student and private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.’”); Corso v. Creighton University, 731 F.2d 529, 531 (8th Cir. 1984) (“The relationship between a university and a student is contractual in nature.”); McConnell v. Le Moyne College, 808 N.Y.S.2d 860 (N.Y. App. Div. 2006) (holding that Le Moyne College must act in accordance with the due process provisions of its student catalogue); Schaer v. Brandeis University, 735 N.E.2d 373 (Mass. 2000) (recognizing contractual relationship between student and university, and employing “‘the standard of reasonable expectation — what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.’”) (internal quotation omitted); Tedeschi v. Wagner College, 49 N.Y.2d 652 (Ct. App. 1980) (holding that “when a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.”).
In some cases, however, courts have ruled that student handbooks and other related materials are non-binding or need not be precisely followed. See Pacella v. Tufts University School of Dental Medicine, 66 F. Supp. 2d 234 (D. Mass. 1999) (ruling that the provisions of the student handbook were not contractually binding on the university in part because the university could unilaterally modify them without notice); Love v. Duke University, 776 F. Supp. 1070 (M.D.N.C. 1991), aff’d, 959 F.2d 231 (4th Cir. 1992) (holding that Duke University’s academic bulletin was not a binding contract); Romeo v. Seton Hall University, 378 N.J. Super. 384, 395 (App. Div. 2005) (“A contractual relationship cannot be based on isolated provisions in a student manual….[A] private religious university’s values and mission must be left to the discretion of the university.”). In spite of these decisions, the weight of the precedent is favored toward recognizing university-student relationships as contractual in nature and holding universities accountable for the promises they make to students in handbooks and other related materials. The “contract theory” is therefore a viable and judicially recognized means of enforcing students’ free speech rights at private colleges and universities. See Kelly Sarabyn, Free Speech at Private Universities, 39 J.L. & Educ. 145 (2010) (analyzing restrictions of free speech at private institutions in violation of stated policy, and arguing that contract theory provides the best legal mechanism for holding universities accountable for such violations).
As a private entity with its own institutional First Amendment rights, a private college may choose to define itself as being committed to values other than free speech, as long as the school makes it publicly and consistently clear that it holds a certain set of values above a commitment to free speech. For example, Brigham Young University (BYU) is quite forthright in its stated policies that students entering BYU are not guaranteed robust free speech rights. One BYU policy says the following about free expression: “[T]he exercise of individual and institutional academic freedom must be a matter of reasonable limitations. In general, at BYU a limitation is reasonable when the faculty behavior or expression seriously and adversely affects the university mission or the Church.” It would be clear to anyone attending BYU that they are not entitled to unfettered free speech on campus. If a private college clearly does not promise free speech, and the college makes this known publicly and consistently, entering students have given informed consent and have voluntarily chosen to limit their own rights-in much the same way students entering military academies or theological seminaries understand that they are relinquishing many rights they would enjoy at a state college.
III. Speech Codes in the Courts
FIRE defines a speech code as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large. This basic definition is necessary because colleges rarely label such restrictions as “speech codes” in their handbooks. Instead, they are referred to by many other names. For example, “speech zone” policies like the one maintained by Valdosta State University which limited the free speech activities of 11,000 students to less than 1% of a 168-acre campus; or “student rights and obligations” policies like Pennsylvania State University’s “Penn State Principles,” which prohibit students from violating others’ “rights” by “taunting, ridiculing, [or] insulting” other students. (Both of these policies were voluntarily reformed by the respective institutions after letters from FIRE.) Other examples include computer use policies like the one at the University of Alabama – Huntsville, which prohibits “[a]ny inappropriate e-mail,” including “unofficial, unsolicited e-mail,” or “diversity” policies like the one at Texas Southern University, which prohibits “intentional mental… harm.”
The most common type of speech code, however, is absurdly overbroad “harassment policies.” For example, Eastern Michigan University defines sexual harassment as including “inappropriate sexual or gender-based activities, comments or gestures.” The University of Texas – Austin prohibits “sexually oriented conversations [or] comments” and “the use of language or the telling of jokes or anecdotes of a sexual nature…even if such conduct is not objected to by those present.” Jackson State University’s harassment policy provides, in relevant part, that “The scope of any form of harassment includes language to physical acts which degrades, insult, taunt, or challenges another person by any means of communication, verbal, so as to provoke a violent response, communication of threat, defamation of character, use of profanity, verbal assaults, derogatory comments or remarks, sexist remarks, racists remarks or any behavior that places another member of the University community in a state of fear or anxiety.”
While some of these policies are enacted out of a presumably well-intentioned-if paternalistic-impulse to “protect” students from “harm,” they are entirely incompatible with freedom of expression and the daily reality of communication in our modern liberal democracy. When enacted at public universities, speech codes like the ones described above have been found unconstitutional by federal and state courts in decisions dating back over two decades.
Case Law: Speech Codes
In case after case, courts across the country have unequivocally and uniformly held speech codes at public universities to be unconstitutional. Public institutions of higher learning attempting to regulate the content of speech on campus are held to the most exacting level of judicial scrutiny. Typically, courts find speech codes to violate the First Amendment because they are vague and/or overbroad. This means that because the speech code is written in a way that (a) insufficiently specifies what type of speech is prohibited or (b) would prohibit constitutionally protected speech, it cannot be reconciled with the First Amendment’s protection of freedom of speech.
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989):
A federal district court found the speech provisions of the University of Michigan’s harassment code to be unconstitutionally overbroad. The code forbade “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed… and that… creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University[-]sponsored extra-curricular activities.” In invalidating the speech code, the court observed that “[t]he Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad.” [Full opinion included in Appendix.]
UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991):
A federal district court ruled unconstitutional a policy prohibiting speech that: “Demean[s] the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; [and]… [c]reate[s] an intimidating, hostile or demeaning environment for education, university related work, or other university-authorized activity.” In striking down the code, the court ruled that “the suppression of speech, even where the speech’s content appears to have little value and great costs, amounts to governmental thought control.”
Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995)
Dambrot was the first speech code case decided by a federal appellate court. The challenged speech code was a discriminatory harassment policy which defined racial and ethnic harassment as “any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by . . . demeaning or slurring individuals . . . or . . . using symbols, [epithets] or slogans that infer negative connotations about the individual’s racial or ethnic affiliation.” As with the first two speech code cases, the Sixth Circuit found the policy to be both unconstitutionally vague and overbroad. The Court stated, “It is clear from the text of the policy that language or writing, intentional or unintentional, regardless of political value, can be prohibited upon the initiative of the university.” Additionally, responding to the university’s argument that the policy only prohibited fighting words, the Sixth Circuit held that, even assuming this argument to be true, “the CMU policy constitutes content discrimination because it necessarily requires the university to assess the racial or ethnic content of the speech.” As such, the policy was unconstitutional on its face.
Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.)
In Corry, a California state court decided the first (and to date only) speech code case involving a private university. At issue was Stanford University’s policy on “harassment by personal vilification,” which prohibited speech “intended to insult or stigmatize an individual . . . on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.” Again, the university argued that its policy targeted only fighting words. The court responded that the policy, even if limited to fighting words, did not prohibit all fighting words, but only those words based on the enumerated categories, violating the First Amendment’s requirement of content neutrality. Secondly, the court held that the policy in fact prohibited more than just fighting words, rendering it unconstitutionally overbroad. This decision is also noteworthy because the court relied on California’s “Leonard Law,” which provides students attending private institutions in California with the same free speech rights as those attending public institutions.
Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998)
In Booher, a federal district court declared a sexual harassment policy to be both overbroad and vague for prohibiting, in pertinent part, expression which “unreasonably affects your status and well-being by creating an intimidating, hostile, or offensive work or academic environment.” In particular, the policy “fail[ed] to draw the necessary boundary between the subjectively measured offensive conduct and objectively measured harassing conduct,”giving one “the impression that speech of a sexual nature that is merely offensive would constitute sexual harassment because it makes the individual hearer uncomfortable to the point of affecting her status and well-being.” This made the policy clearly capable of reaching protected speech and therefore overbroad. The court also found that the policy “fail[ed] to give adequate notice regarding precisely what conduct is prohibited” and “delegate[d] enforcement responsibility with inadequate guidance,” rendering it unconstitutionally vague.
Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003)
In Bair, a case coordinated by FIRE, a federal district court found Shippensburg University’s speech code, which stated that “[t]he expression of one’s beliefs should be communicated in a manner that does not provoke, harass, intimidate or harm another,” to be in violation of the First Amendment. In finding the school’s code unconstitutional, the court held that “regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings,” and further noted that not even codes that attempt to ban so-called “fighting words” pass constitutional muster.
Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004)
n Roberts, another case coordinated by FIRE, a federal district court considered a speech code banning the use of “physical, verbal, written or electronically transmitted threats, insults, epithets, ridicule or personal attacks” that are “personally directed at one or more specific individuals based on the individual’s appearance, personal characteristics or group membership, including, but not limited to, race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, ideology, political view or political affiliation.” The court held the speech code to be facially overbroad in covering “much speech that, no matter how offensive, is not proscribed by the First Amendment.”
College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007)
In October 2006, the San Francisco State University (SFSU) College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags. This offended several students in attendance because the flags contained the word “Allah” written in Arabic script. In response, offended students filed charges of “attempts to incite violence and create a hostile environment” and “actions of incivility,” prompting an SFSU “investigation” that lasted five months. The charges culminated in a school disciplinary hearing in March 2007, at which time the CollegeRepublicans were cleared of wrongdoing.
However, in July 2007, the College Republicans brought a constitutional challenge to SFSU’s speech codes in federal district court. In November 2007, Judge Wayne Brazil issued a preliminary injunction barring SFSU and other schools in the California State University system from enforcing several challenged policies, including a requirement that students “be civil to one another” and act in accordance with SFSU’s “goals, principles, and policies.” Judge Brazil also limited the CSU system’s ability to enforce a policy prohibiting “intimidation” and “harassment,” holding that the policy could only be applied to conduct that “reasonably is concluded to threaten or endanger the health or safety of any other person.”
DeJohn v. Temple University, 537 F.3d 301, 319 (3d Cir. 2008)
At issue in DeJohn was a policy defining sexual harassment to include “expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.” Under the terms of the sexual harassment policy, the plaintiff, a graduate student in history and former member of the military, claimed that he “felt inhibited in expressing his opinions in class concerning women in combat and women in the military” and felt “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the University.”
The Third Circuit found the policy to be untenable for several reasons. First, it observed that under the policy’s “purpose or effect” prong, “a student who sets out to interfere with another student’s work, educational performance, or status, or to create a hostile environment would be subject to sanctions regardless of whether these motives and actions had their intended effect.” As a result, the policy violated the requirement that a school “must show that speech will cause actual, material disruption before prohibiting it.” Additionally, the policy’s use of terms which were not clearly self-limiting, such as “hostile,” “offensive,” and “gender-motivated,” rendered it “sufficiently broad and subjective” that it “could conceivably be applied to cover any speech of a gender-motivated nature the content of which offends someone.” Critically, “[t]his could include ‘core’ political and religious speech, such as gender politics and sexual morality.” Thus, the Third Circuit concluded that “the policy provides no shelter for core protected speech.” The court ultimately held the policy to be facially overbroad and permanently enjoined the university from re-implementing or enforcing the policy. As a strongly-worded federal circuit court opinion, DeJohn carries much significance and should clearly and powerfully convey the message to university administrators that speech codes are unconstitutional.
Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010)
In Smith, a federal district court found restrictions on symbolic speech on campus maintained by Tarrant County College (TCC) to be unconstitutional. The court found that TCC’s reliance on a policy prohibiting “disruptive activities” to restrict students from holding an “empty holster” protest violated the First Amendment. The court further ruled that TCC’s sweeping prohibition on “cosponsorship,” which forbade students and faculty from holding campus events in association with any “off-campus person or organization,” prevented TCC students “from speaking on campus on issues of any social importance” and was therefore “overly broad” and “unconstitutional on its face.”
McCauley v. University of the Virgin Islands, 618 F.3d 232 (3rd Cir. 2010)
In McCauley, the Third Circuit struck down on First Amendment grounds two University of the Virgin Islands (UVI) policies restricting student speech and uphelp the district court’s invalidation of a third. Noting that a “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students,” the Third Circuit found UVI’s policy forbidding “offensive” or “unauthorized” signs to be unconstitutionally overbroad. Similarly, citing its opinion in DeJohn, the court found UVI’s prohibition of conduct causing “emotional distress” equally untenable, deeming the policy “entirely subjective” and finding that it “provides no shelter for core protected speech.” The opinion noted that under the unconstitutional policy, “[e]very time a student speaks, she risks causing another student emotional distress,” and concludes that this “heavy weight” does “substantial” damage to free speech on campus. The Third Circuit affirmed the lower court’s finding that a third policy, UVI’s “Hazing-Harassment” policy, was overbroad. The policy prohibited “any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person”-and, applying DeJohn, the district court found it facially unconstitutional.
In Williams, a federal district court declared that the University of Cincinnati’s (UC’s) tiny “free speech zone” violated the First Amendment rights of UC students. In his order enjoining enforcement of the challenged free speech zone policy, United States District Judge Timothy S. Black held that UC’s free speech zone “violates the First Amendment and cannot stand.” The policy required that all “demonstrations, pickets, and rallies” on campus take place in an area comprising just 0.1% of the university’s 137-acre West Campus. UC also required that all expressive activity in this free speech zone be registered with the university 10 working days in advance, even threatening that “[a]nyone violating this policy may be charged with trespassing.”
UC’s policy was challenged in court by the university’s student chapter of Young Americans for Liberty (YAL), who had sought permission to gather signatures and talk to students across campus in support of a statewide “right to work” ballot initiative. The student group’s request was denied and its president, Christopher Morbitzer, was told that if any YAL members were seen “walk[ing] around campus” gathering signatures, campus security would be alerted. UC had also previously been put on notice regarding the constitutional defects of its policy, when FIRE named the policy our “Speech Code of the Month” in December 2007.
IV. Qualified Immunity and the Possibility of Legal Liability for Maintaining Speech Codes
When a student at a public college or university has been deprived of a constitutional right by reason of official action, he or she has recourse to a section 1983 suit. This remedy allows the student to collect monetary damages from the responsible individual in his or her personal capacity. The cause of action comes from the federal Civil Rights Act of 1871, which states:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. §§ 1983, 1985, 1986 (2000). The requirement of action under color of state law means that the defendant official must have exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
When facing a section 1983 suit for damages, one of the defenses available to a state official is qualified immunity. Qualified immunity shields government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has clarified this standard by adopting a two-part test: first, whether the facts as alleged demonstrate violation of a constitutional or statutory right, and second, whether that right was clearly established at the time, such that it would have been clear to a reasonable official that the alleged conduct was unlawful under the circumstances. Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Pearson v. Callahan, 129 S.Ct. 808 (2009) (overruling Saucier on this point and holding that courts have discretion to decide order in which to apply two-part test).
This inquiry entails consideration of both clearly established law and the factual information possessed at the time, and therefore must be “undertaken in light of the case’s specific context, not as a broad general proposition.” Saucier, 533 U.S. at 194. Ultimately, Supreme Court jurisprudence commands government officials to look to “cases of controlling authority in their jurisdiction” or “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999).
The courts, in applying this doctrine whenever it is raised as an affirmative defense in a college or university student’s section 1983 suit, should recognize that depriving a student of his or her constitutional right to free speech is in fact a violation of clearly established law. The protections for free speech set forth in the First Amendment are most certainly clearly established rights within our society and apply with particular rigor in the college and university setting, in light of the importance of allowing for the free exchange of ideas on campus.