At universities across America, thousands of students are routinely subjected to unconstitutional and illiberal speech regulations that require burdensome notice or wait time requirements to assemble on campus. Thursday’s shooting of a police officer (and the later suicide of the shooter) at Virginia Tech provides another example of how these unconstitutional policies are morally wrong and, if applied, can be downright cruel.
Policies restricting assembly are unconstitutional (on publicly funded campuses) for good reason. It’s one of our fundamental rights as Americans to gather together to mark important events or show our support or disapproval of various issues. When my organization, the Foundation for Individual Rights in Education (FIRE), tries to explain this to colleges and universities, the example we generally use is the many candlelight vigils and quiet remembrances that took place immediately after the September 11, 2001, terrorist attacks. Virginia Tech has, unfortunately, now provided us with another example.
In the aftermath of Thursday’s Virginia Tech shooting, students unsurprisingly were determined to hold immediate events to help students discuss and process what happened. The Associated Press and CBS reported Friday morning that "About 150 students gathered silently Thursday night in an impromptu candlelight vigil at Virginia Tech. … Though the official candlelight vigil was moved to Friday evening, many turned out anyway to show their support for the officer who lost his life."
It would be difficult to find a single person in America, including (I presume) in the Virginia Tech administration, who would have a problem with this. Marking with sorrow the death of a police officer is utterly unobjectionable. And to its credit, Virginia Tech did nothing to prevent this vigil from occurring. Yet those 150 students almost certainly broke the rules at Virginia Tech. This is because Virginia Tech has a free speech policy that FIRE rates a "yellow light" because it does not meet the requirements of the Constitution and could easily have been used to prevent Thursday night’s vigil.
One part of Virginia Tech’s policy on "University Facilities Usage and Event Approval" states that "Use of a facility must be scheduled and approved prior to the event." Another part states similarly:
The Organizations must have approval from the university to hold an event or activity. The sponsor of the event must reserve space to hold the event. Request for space also serves as a request to hold the event. Confirmation of space implies that the event has been approved.
And still another part of the policy suggests that individuals from Virginia Tech may not hold events on campus: "All events must have a sponsor from the university. The sponsor may be a registered student organization, a university department or a university-associated organization." It seems that the only "exception to policy" here is the one "permitting individual members of the University to schedule use of the Gazebo [at the Duck Pond] for weddings."
These policies apply to the entire campus, including "Public Outdoor Spaces." To use Virginia Tech’s public outdoor spaces, groups must contact the UUSA Event Planning Office for permission.
Planning Office? Sponsors? Permits? No individuals reserving space? How in the world could any of this be arranged in time for a candlelight vigil like Thursday night’s? It couldn’t – and that’s the problem.
The reason that Virginia Tech did not bother enforcing these burdensome requirements on Thursday night is obvious: the university would have been universally condemned for stopping these students from mourning the death of police officer and Iraq War veteran Deriek W. Crouse, and rightfully so. But here’s the thing – in a free society, your freedom of expression cannot and must not depend on the willingness of the authorities to bend their own rules.
The fact that hundreds of universities across America continue to defy the Constitution and reserve the right to prohibit and forcibly break up candlelight vigils like this one on their campuses is a national scandal. America’s institutions of higher education can do better. Thursday’s vigil at Virginia Tech shows that it’s long past time that they did.