First Amendment rights in public higher education institutions

¶ … Bill of Rights been applied to public higher education?

The Bill of Rights applies explicitly to state-funded public institutions. Public institutions of higher learning must refrain from the "establishment" of religion, the endorsement of religion, or the prohibition of religious expression. The First Amendment also guarantees no "abridging" of freedom of speech or freedom of press. Institutions of higher learning cannot infringe on "the right of the people peaceably to assemble" and right to "petition the government" either. Therefore, when drafting codes of behavior on public school campuses, administrators must remain cognizant of case law and precedent related to First Amendment issues. State institutions must, for example, recognize the right of students to freely assemble on campus.

What are Student's Rights in:

a. freedom of speech

Content-based restrictions on freedom of speech are subject to some limitations, such as direct "true" threats, obscenity and child pornography (Kaplan & Lee 2007, p. 387). However, freedom of speech is protected by the expression and press clauses in the First Amendment of the Constitution as well as in the constitutions of some individual states. Moreover, students also have the right to peaceably assemble as in public political protests. Freedom of expression also applies to symbolic acts as well as actual words such as with musical or artistic expression. The "unique interests of academic communities" such as their educational missions may in some cases limit freedoms of expression: if free expression can be directly linked to a disruption of the academic environment (Kaplan & Lee 2007, p. 477).

b. freedom of the press

The freedom of press clause of the First Amendment protects students from being censored and prohibits school administrators from controlling or coercing the content in student newspapers (Kaplan & Lee 2007, p 547).

c. privacy (search and seizure):'emerging areas of more recent significance'

Students are protected by constitutional rights regarding privacy on campus as well as off-campus.

d. freedom of speech, religion and student fees

Generally, campus organizations on public universities must fulfill "viewpoint neutrality" if they seek to collect mandatory student fees. Student fees can be collected for viewpoint neutral purposes, as long as the university outlines clearly and specifically how such funds will be allocated and offers students opportunities for objection and appeals (Kaplan & Lee 2007, p. 523). Public institutions are not permitted to show favoritism regarding funds allocations either. However, religiously-oriented student organizations are protected by freedom of speech, expression, and assembly rights in general.

f. organization recognition

The right to organize is protected by the First Amendment as both freedom of association and freedom of expression (Kaplan & Lee 513). State-sponsored universities are therefore required to officially recognize student organizations as being an expression of core First Amendment rights. Students are entitled to freely assemble and create student organizations on campus that use campus facilities as meeting places as long as the students involved in the organization do not violate other campus rules in the process (Kaplan & Lee 514). Public school administrators may in some cases deny recognition to student organizations, such as if the organization would actually and not theoretically cause disruption or if the organization would have been deemed illegal in any other way (Kaplan & Lee 515).

g. hate speech codes

No case involving hate speech specifically on school campuses has reached the Supreme Court (Kaplan & Lee 2007 p. 493). However, case law informs how hate speech is dealt with on campus to provide the balance between freedom of speech protection and the protection against violence or discrimination on campus. Hate speech has been defined by its being inherently humiliating and derogatory and not communicative or educational in any way (Kaplan & Lee 493). Vagueness and broadness of campus free expression rules have been deemed problematic, and campuses generally must define the parameters of hate speech. Certain "nonspeech" expressions such as overt intimidation or true threats can also be restricted on campuses (Kaplan & Lee 2007, p. 502).

i. sexual-harassment

Sexual harassment is not protected by First Amendment rights and in many cases may be prohibited. Students are entitled to seek monetary compensation from the institution.

j. commercial speech

The campus can be conceived of as a public forum in which freedom of expression and freedom of speech are protected, including commercial speech. However, universities are designated with the mission of education and if commercial activity interferes with the educational mission then campus administrators may restrict commercial speech on campus.

3.Are academic issues non-justiciable?

Most academic issues are non-justiciable, in so far as those issues are protected by constitutional rights to free expression and the establishment clause of the First Amendment.

4.What institutional rights are involved?

Public institutions are bound more by their obligation to protect student constitutional rights than they are offered leeway to create campus rules and regulations that may violate those rights. Institutions may, however, designate specific instances of hate speech or restrictions on student expression based on potential disruptions to the campus environment or mission.