In an election year when the presidential race between Senators Barack Obama and John McCain dominated much of the country’s attention and media headlines, college and university campuses were certainly not immune to election fever. University students and faculty across the nation joined in the multitude of voices advocating for, criticizing, protesting, and otherwise commenting on the candidates and the hot-button issues of the season. With this came some regrettable consequences. This year, we witnessed a number of colleges and universities prohibiting and punishing many forms of constitutionally protected political speech and activity. While the rights of students and faculty were ultimately vindicated at several of these institutions, the trend is a troubling one and does not speak well of the climate on campus with respect to tolerance of healthy debate and differing viewpoints.
Indeed, in order to explain and clarify the rights enjoyed by students and faculty at both public and private universities, FIRE issued a Policy Statement on Political Activity on Campus, expanding upon a policy statement we had issued in 2004, as well as a podcast summarizing our new policy statement. The main thrust of our 2008 statement is that, while universities have an obligation under the law to maintain political neutrality either as tax-exempt institutions (in the case of private colleges and universities) or as government agencies (in the case of public institutions), such an obligation concerns only a narrow range of conduct. As our statement makes clear, the vast majority of students’ and faculty members’ political speech and activity does not endanger universities’ obligations under the law.
The repression of political speech and activity on campus took several different forms in 2008. The University of Illinois (UI) system, for instance, prohibited all faculty and staff from engaging in a wide variety of political activity, ranging from wearing a pin or t-shirt in support of a political candidate or party, to conducting such research as "an opinion poll related to anticipating an election outcome," to, perhaps most absurdly, sporting a political bumper sticker on one’s vehicle. The restrictions, quite fittingly, were widely criticized.
FIRE wrote University of Illinois at Urbana-Champaign President B. Joseph White to inform him that if the UI system intended simply to prevent faculty and staff from creating the appearance that the university system endorses a particular political candidate or party, it had severely overshot. As FIRE argued, when a faculty member wears a political button around campus, any reasonable observer would assume that the content of the button, rather than representing the views of the institution, reflects solely the personal views of that individual. Therefore, allowing faculty members to wear political buttons around campus or affix political bumper stickers to their vehicles would not endanger a public university’s obligation to refrain from endorsing a particular candidate or party. President White subsequently wrote to the university community clarifying that university employees, including faculty, are free to attend political rallies on campus (provided they are not on duty at the time), wear partisan political buttons (again, provided they are not on duty at the time nor in the workplace of the university), and place partisan bumper stickers on their vehicles. While this statement still left some ambiguity about the speech rights of students and faculty, the fact that the UI system backed off its initial stance represented a welcome change in policy.
Another memorable political speech case arose at the University of Oklahoma (OU). In September, an OU administrator sent a campus-wide e-mail to all students, faculty, and staff directing them not to use their university e-mail accounts to "endorse or oppose a candidate, including the forwarding of political humor/commentary." The e-mail alert stated that even personal use of one’s university account "may not include political issues outside of the educational context as it places the University at risk of losing its tax exempt status." Similarly to what took place in the University of Illinois system, OU curtailed much protected expression and activity under the rationale of preventing students and employees from creating the appearance that the university endorsed a particular political candidate or party.
FIRE wrote OU President David L. Boren, pointing out that it was patently absurd to argue that any partisan political speech in which university employees or students engage using university e-mail accounts can be banned at a public university, and that by taking this approach, OU was in violation of its legal obligation to uphold the First Amendment on campus. Ultimately, President Boren issued a clarification e-mail to the OU campus stating that the university’s previous statement on political speech and activity was "hereby rescinded and withdrawn" and that "[a] university should always be a free marketplace of ideas." President Boren clarified that while "no one should presume to speak on behalf of the university in a way that would imply that the university, as an institution, is supporting a political candidate, party or cause," such a limitation would no longer restrict OU students, faculty, and staff from expressing their individual views. Thus, freedom of speech and common sense thankfully prevailed on the OU campus, allowing members of the university community to once again use their university e-mail accounts to engage in a wide variety of political discourse, partisan speech, political humor and commentary, and the like.
Lastly, the University of Texas at Austin (UT) added to the tumult on campus surrounding the election season when it threatened to punish two students for refusing to remove political signs from their dormitory windows. The students, Connor and Blake Kincaid, were in violation of a UT policy prohibiting the posting of signs in dormitory windows and were told that failure to remove their signs would result in an administrative block against registration for spring classes—effectively, an expulsion from the university. Though the policy in question was roundly criticized on campus, including by both the University Democrats and College Republicans, the university defended the policy as being necessary "to prevent things plastered around campus willy-nilly."
As Will Creeley argued on The Torch, however, it was questionable whether that justification would be deemed sufficient by a court analyzing the policy under the standards applicable to a reasonable time, place, and manner restriction on the exercise of First Amendment rights. This type of restriction must be narrowly tailored to serve a significant government interest, and in this case, UT’s asserted generalized interest in maintaining an aesthetic order on campus would not seem to qualify as a sufficiently significant government interest to justify the university’s heavy-handed approach. In any event, Will was right to label the UT regulation "a silly, if not necessarily unconstitutional, ban on student expression." In the face of public exposure of its policy, UT quickly rescinded its ban on signs in dormitory windows; UT President William Powers, Jr., informed students via e-mail that the offending policy and sanctions related to its enforcement would be suspended immediately and replaced with an interim regulation that "expressly allows the display of signs and posters in students’ residence hall room windows." This brought a positive end to an unpleasant episode at UT.
While the cases at Illinois, Oklahoma, and Texas garnered widespread attention, and deservingly so, they were not the only political speech cases to crop up during the election season. FIRE also received reports of political speech and activity being restricted at schools such as Fresno Pacific University, Louisiana State University, and Cuyamaca College in California—all this despite the fact that political speech has consistently and traditionally been accorded the utmost First Amendment protection by the courts. As the Supreme Court declared many years ago, "speech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (emphasis added). That such speech was under attack at so many institutions of higher education in the past year is troubling indeed.
So as FIRE and its followers and allies look ahead to 2009 and beyond, what should we take away from these and other instances of repression of political speech and activity on campus? I am inclined to think that there is more going on in these cases than the usual censorship of campus speech and association that FIRE sees all too often. It seems that many university administrators genuinely lack a true understanding of the law regarding their institutions’ obligations of political neutrality and its impact on the speech rights of students, faculty, and staff. In that regard, I am hopeful that our Policy Statement on Political Activity on Campus promotes a better understanding of the law. I would encourage our readers, if they have not already done so, to take a look at our policy statement as well. It is my sincere hope that a better understanding of the legal issues covered therein will result in fewer instances of repression of campus political speech and activity in 2009, in future election seasons, and beyond.