On Wednesday, the Third Circuit Court of Appeals issued a ruling reaffirming that greater speech protections apply at public universities than at high schools and elementary schools. The appellate court’s decision in McCauley v. University of the Virgin Islands, which struck down the university’s speech codes, further strengthened the First Amendment protections for university students previously articulated in the Third Circuit’s decision in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008).
As we argued in the amicus brief that we submitted in McCauley, courts have too often used the speech standards applicable to the high school and elementary school contexts in the university setting. Applying high school speech cases to universities erodes the great speech protections that university students should enjoy and perverts the role of the university, which was designed to serve as a cauldron for debate and discourse. As our amicus brief contended, "[r]endering the free speech rights of adult students at a public college equivalent to those of schoolchildren provides university administrators legal justification to restrict speech at public institutions far beyond the bounds of the First Amendment, to the detriment of both college students and American society."
Two important Third Circuit decisions have now enshrined this position into appellate court precedent. In DeJohn, the court of appeals invalidated the sexual harassment policy at Temple University, which barred "expressive, visual or physical conduct of a sexual or gender-motivated nature" when such conduct had the "purpose or effect of creating an intimidating, hostile, or offensive environment." In finding this policy unconstitutional, the court in DeJohn noted that it likely chilled protected speech on gender issues, such as the role of women in the military. The court also held that a high school or elementary school’s ability to restrict certain speech did not mean that public universities could limit that same type of speech. According to the appellate court, "we keep in mind that Temple’s administrators are granted less leeway in regulating student speech than are public elementary or high school administrators."
This week, the same court of appeals went even further in clarifying the rights afforded university students. In McCauley, the Third Circuit held that courts should not blindly apply the cases governing high school speech to litigation concerning university speech policies. The court gave several reasons why universities are less entitled to restrict speech.
- "The differing pedagogical goals of each institution"
The court observed that while high schools and elementary schools "prioritize the inculcation of societal values …. [p]ublic universities encourage teachers and students to launch new inquiries into our understanding of the world."
- "[T]he in loco parentis role of public elementary and high school administrators" and "the special needs of school discipline in public elementary and high schools"
The Third Circuit rightly noted that school authorities in lower levels of education serve as stand-in parents for students, but college administrators do not have that same authoritarian control. According to the court, "[m]odern-day public universities are intended to function as marketplaces of ideas, where students interact with each other and with their professors in a collaborative learning environment." In addition, while strict rules often need to be enforced in lower levels of education, college students are empowered to skip class, manage their own schedules, and use laptops in the classroom responsibly—all privileges normally afforded to college students as adults.
- "[T]he maturity of the students"
Because "research has confirmed the common sense observation that younger members of our society, children and teens, lack the maturity found in adults[,]" juveniles have less responsibility for their actions and are more adversely influenced by social pressures. The lack of emotional maturity of juveniles was a main reason for allowing greater speech restrictions over elementary and high school students in cases involving lewd or offensive speech. As a result, the Third Circuit held that these cases are less instructive when dealing with lewd or offensive speech at universities, where the student body is largely comprised of adults.
- "[T]he fact that many university students reside on campus and thus are subject to university rules at almost all times."
The Third Circuit expressed its concern that if the court gave "public university administrators the speech-prohibiting power afforded to public elementary and high school administrators," the free speech rights of students who live on campus would be constantly circumscribed by university rules.
The court thus concluded that free speech doctrine derived from cases involving high schools and elementary schools should be "scrutinized carefully" before it is applied to the university setting. This pronouncement echoes the arguments made in our amicus brief and the legal scholarship of former FIRE Justice Robert H. Jackson Legal Fellow Kelly Sarabyn. FIRE is pleased that the Third Circuit has taken heed of these arguments. The distinction between the speech protections applicable to universities, on the one hand, and high school and elementary schools, on the other hand, is now even more firmly established in federal precedent.