Late yesterday afternoon, in a brazen act of censorship on campus, the University of Texas at Austin (UT) ruled against two students who have refused to remove political signs posted on their dormitory door and window, according to a report from The Daily Texan this morning. Connor Kincaid and Blake Kincaid reportedly had until 7 PM Wednesday evening to remove the signs; as of 9:30 PM, the signs remained posted. Both students have been told that failure to comply will result in an administrative block against registration for spring classes, a punishment equivalent to expulsion.
The UT policies governing the posting of signs, both in dormitory windows and doors, have been criticized jointly by both the University Democrats and the College Republicans. UT’s insistence on enforcing the policies in this instance has resulted in widespread media attention. However, according to The Daily Texan, UT is publicly defending its stance:
Jeffery Graves, associate vice president for legal affairs, said the University does not have an aesthetics policy but instead has rules that limit the locations of signs throughout campus.
"It is our view that placing a sign in a window has the same effect as putting it on a wall," Graves said. "We want to prevent things plastered around campus willy-nilly."
Amazingly, Graves also told The Daily Texan that UT "encourage[s] rather than suppress[es] free speech." Could have fooled the Kincaids!
Cases like Ward v. Rock Against Racism, 491 U.S. 781 (1989), make clear that public universities, as government instrumentalities, are permitted by law to enforce reasonable time, place and manner restrictions on the exercise of the First Amendment right to free expression on campus. However, any such restrictions must be content-neutral, must be narrowly tailored to serve a significant government interest, and must provide "ample alternative channels" for the expression at issue.
In light of this allowance, let’s examine the UT regulations. UT’s window policy bans "advertisements, posters, flags, clothing or any externally visible display," and the door policy allows for the posting of "two 8.5" x 11" flyers." The policies are content-neutral—i.e., there’s no specific ban against political signs—insofar as they ban "any externally visible display." Further, we can (hopefully) presume that ample alternative channels for student political expression, including posting political signs, exist on campus. So far, so good, even if the policy enforcement feels intuitively like a violation of the First Amendment.
The real question for me, however, is what significant government interest does this dorm signage ban further? Graves seems to suggest that UT has a general desire to maintain an aesthetic order, rather than allow signs being "plastered around campus willy-nilly." I’m not at all sure that this generalized desire for order counts as a significant government interest—but I’m also sure that if this matter went to litigation, UT would likely scramble to think of better reasons. It also seems a bit of a stretch to suggest, as Graves does, that signs in dorm room windows are the aesthetic equivalent of signs posted on a random campus wall. So again, while this policy feels substantively wrong—especially given the university’s extraordinarily heavy-handed approach to enforcement thus far—whether or not it in fact is violative of the First Amendment would likely be a surprisingly close call, were the matter to go to court.
So there may be better ways to fight what is unquestionably a silly, if not necessarily unconstitutional, ban on student expression in dorm windows and on dorm doors. I am reminded instantly of FIRE’s 2003 case at the University of Alabama, which maintained a similar ban on window hangings. To defeat the ban, students across campus displayed the American flag in their windows. Rather than ban Old Glory, the university abandoned its misguided fight against student expression. All of us here at FIRE are willing to bet that a similar student initiative at UT would prove far more potent than litigation. I certainly think that UT is engaged in censorship; the issue then becomes the best way to defeat it.
FIRE will of course monitor the situation at UT as it develops. We hope that the university comes to its senses and realizes that political involvement and student expression are to be embraced as essential parts of a modern liberal education, not banned.