FIRE warns multiple universities that political speech bans could be unconstitutional

October 22, 2008

By the Student Press Law Center

The Foundation for Individual Rights in Education created a political activity policy for colleges and universities to abide by in response to a string of complaints accusing colleges across the country of silencing student and faculty political expression.

FIRE, a nonprofit educational foundation, wants all public colleges and universities to acknowledge that students and student groups can express themselves politically on campus under the First Amendment and that faculty employees enjoy the right to engage in partisan political speech when occurring outside of their “employment-related” activities.

FIRE released the statement of policy on political activity for campuses Oct.15 following several complaints that university administrations were stifling on-campus speech.

In recent incidents at the University of Texas, University of Illinois and University of Oklahoma, administrators changed course in their policies in response to letters sent by FIRE or negative media attention.

At UT, the move to subdue political speech sparked national attention when students Connor and Blake Kincaid failed to comply with the university’s sign policy and faced expulsion. The policy bans signs from being displayed in dorm windows. After media outlets began reporting on the controversy surrounding the sign policy, university President William Powers issued a statement suspending the policy as of Oct. 9.

“We never wanted to make a big deal about this,” Connor Kincaid said in an Austin American-Statesman article. “We just wanted to be able to keep our signs up until Election Day. We’re glad that we are doing just that.”

The president of the University Democrats, Zack Hall, said the two University Democrats members had an Obama sign in their dorm window that said “Vote Democrat” and listed early voting dates.

The students were asked four times by university officials to take down the signs but refused. They were told Oct. 7 they would have to go to a judicial hearing. At the judicial hearing, Connor and Blake were given until 7 p.m. to remove the sign or they would not be cleared to register for spring classes.

“The application of the rule was not equal,” Hall said.

Hall said during football season, signs are everywhere and in one instance, the UT fight song was displayed across the windows of a dorm.

Hall received a call from university officials informing him that Powers decided to allow students to post their signs on an interim basis during which a committee would be formed to revise the policy.

“We’re really excited about the decision,” said Hall. “It’s good to know that good old-fashioned civil disobedience can go a long way.”

Administrators at Illinois and Oklahoma had a change of plans after attention was brought to policies hampering political expression, too.

The ethics office at the University of Illinois sent a newsletter to employees defining prohibited political activity. According to the policy, prohibited political activity included wearing political buttons and attending on-campus rallies supporting a specific political candidate.

Adam Goldstein, Student Press Law Center legal advocate, said that employees were among those that the Supreme Court indicated did not surrender their rights “at the schoolhouse gate” in Tinker v. Des Moines Independent Community School District. In 1969, the Supreme Court established in Tinker that students have the right to freedom of expression at school as long as their expression does not cause “substantial disruption.”

“Employees have a right to core First Amendment speech, which is traditionally seen as political speech,” he said.

At the University of Oklahoma, students and faculty members received an e-mail from Nick Hathaway, executive vice president and vice president of administration and finance, saying that the university e-mail/network systems may not be used to endorse or oppose a candidate, including the forwarding of political humor/commentary.

FIRE sent a letter to the university expressing concern about the policy. University President David Boren responded that the university has taken no action against any individuals and does not intend to take action against anyone exercising their protected First Amendment freedoms.

No revised policy had been forwarded to students and faculty at the university as of Oct. 15.

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Schools: University of Illinois at Urbana-Champaign University of Illinois at Chicago University of Oklahoma University of Illinois at Springfield Cases: University of Illinois System: Faculty and Student Employees Banned from Participating in Political Activity on Campus University of Oklahoma: Ban on E-mailing Political Humor or Commentary