The Current State of Free Speech Rights for Students at Private Colleges Implementing Speech Codes (original) (raw)

Defying the Constitution The Rise, Persistence, And Prevalence Of Campus Speech Codes

Georgetown Journal of Law & Public Policy, 2009

Paterson University was charged with sexual harassment for replying to his professor in a private e-mail that his religious beliefs opposed homosexuality and viewed it as a perversion. 16 These cases illustrate that, not only do speech codes chill protected expression by their very existence, they are also often enforced in such a manner as to censor protected expression. The topic of speech codes has been covered in both legal scholarship 17 and in mainstream publications. 18 However, there is a surprising dearth of legal scholarship attempting to comprehensively analyze the continued prevalence of speech codes and their impact on campus speech, as well as to effectively answer their proponents. This article seeks to fill the gap in the literature. Part I of this article details several theories commentators have posited to explain the emergence of speech codes. It then outlines the case law on speech codes, under which courts have uniformly struck down speech codes challenged through litigation. Part II of the article discusses the First Amendment doctrinal problems presented by speech codes: overbreadth, vagueness, and content-and viewpoint-based discrimination. It proceeds to analyze the ways in which speech codes have led to the restriction of free speech in higher education. Part III debunks common justifications for speech codes and demonstrates that speech codes do not offer the benefits that their proponents claim. Part IV demonstrates that speech codes are still prevalent at colleges and universities nationwide, using data from the Foundation for Individual Rights in Education's (FIRE) most recent annual speech codes report. 19 In that section, I will also respond to arguments that speech codes are not as prevalent as FIRE's research indicates, by demonstrating that FIRE's methodology offers the most accurate assessment of schools' policies toward student speech. Part V offers several potential solutions to the problems discussed in the article. The most direct of these is to continue to challenge the constitutionality of speech codes in court. A second measure is public exposure of speech codes, since they tend to be heavily disfavored by the public at large and universities 16. Press Release, Foundation for Individual Rights in Education (FIRE),

College and University Speech Codes in the Aftermath of R.A.V v. City of St. Paul

1993

In the case of RAV v. City of St. Paul, a teenager was charged with violating the city's Bias-Motivated Crime Ordinance after being accused of burning a cross inside the fenced yard of a black family. In a 9-0 decision, the Supreme Court struck down the St. Paul ordinance, a decision which raised a question as to whether many college and university speech codes could be found unconstitutional by the Supreme Court's current majority. This paper attempts to resolve the dispute over this issue in the light of the RAV decision. The first section summarizes the tyres of college and university speech codes that exist in the United States. The second se,-.tion argues that many speech codes would be found unconstitutional under Justice Scalia's majority opinion. The third section analyzes the concurring opinions of other justices. The majority opinion held that when a regulation on speech fits a categorical exception to the First Amendment, that regulation must be content-neutra...

Speech on Campus: How America's Crisis in Confidence Is Eroding Free Speech Values

Hastings Constitutional Law Quarterly, 2018

When Thomas Jefferson founded the University of Virginia, he wrote of the philosophy that not only that institution would follow, but one that many other universities and colleges would practice: “This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” This multilayered pronouncement captures several attributes of a free and democratic society, many which universities typically seek to embody. These institutions and their campuses are often viewed as the quintessential marketplaces of ideas within which beliefs and viewpoints of all kinds may be expressed. In turn, ideas may be refuted, not by silencing them, but through rational debate. In this way, the “freedom of the human mind” about which Jefferson wrote may be expanded through learning. However, Jefferson’s ideal has faced significant pushback, particularly in early 2017....

Tales Out of School Delineating Student Speech Protections for t

University of New Hampshire Law Review, 2023

The way students communicate has also changed greatly over the last generation, but in the first two decades of 21st Century, the U.S. Supreme Court had yet to answers questions about the extent of power for school administrators to control off-campus speech on digital technologies. Then in the case of Mahanoy Area School District v. B.L (2021) the U.S. Supreme Court finally answered this question by holding that administrators do have the ability to control off-campus speech. The Court did give some specific scenarios in which administrators had power to regulate off-campus, but it did not give a bright-line rule. As a result, the Court may have muddied the waters even more by expanding the authority of school administrators in a cultural environment where politics and education will only continue to mix. This article provides a more precise test for student speech cases that can be applied in various contexts. First, the article reviews the decision in Mahanoy v. BL. Next, the article outlines student speech precedent at the U.S. Supreme Court. Finally, the article forwards a new constitutional test by using the student speech precedent and drawing a parallel to the public employee speech test.

Compelling Freedom on Campus: A Free Speech Paradox

Constitutional Forum / Forum constitutionnel

In 1985, it was largely unknown how the Supreme Court of Canada would respond to the Charter.1 At first glance, a drugstore’s right to be open for business on Sunday, selling groceries, plastic cups, and a bicycle lock, seemed an unlikely source of inspiration for the Court’s first pronouncement on the essence of freedom. Perhaps unexpectedly, the justices enforced the entitlement, finding that a Sunday closing law compelling a corporation to comply with the Christian Sabbath infringed section 2(a)’s guarantee of religious freedom.2 In doing so, R v Big M Drug Mart defined freedom as “the absence of coercion or constraint,” stating without equivocation that no one who is compelled “to a course of action or inaction” is “truly free”.3 In Justice Dickson’s considered view, coercion includes “blatant forms of compulsion”, such as “direct commands to act or refrain from acting on pain of sanctions”, as well as forms of indirect control.4 In plain and unmistakeable terms, Big M promised ...

Dynamics of Free Speech on Modern College Campuses

2019

In March 2017, Charles Murray--a highly controversial author and academic--visited Vermont’s Middlebury College. His visit was met with students protests; the protesters shouted Murray down, and, ultimately became violent, attacking Murray and injuring a Middlebury professor. The administration doled out discipline to 67 students.Some felt the Middlebury Administration lost control of the situation, and their efforts to reign in the chaos amounted to little more than a semi-random disciplinary response that fell short of imparting societal values on students in need of such a lesson. A Middlebury political science professor, critical of the college’s response stated: “[this] was an institutional failure...Students do not understand the value of free speech” (Saul 2017). After the penalties were handed down, Charles Murray criticized the leniency of the sanctions saying, “They will not deter anyone. They’re a statement to students that if you shut down a lecture, nothing will happen ...