With widespread protests around the nation in the wake of the killing of George Floyd by a Minneapolis police officer, free speech of and on campus is once again at the forefront.
Even though almost all schools are now closed, and almost all speech and the actions of students and faculty are now taking place off campus, school administrators have reacted to national protests by reasserting the right to manage and discipline students and faculty.
Even outside the United States, the Chair of the Board of Governors of the University of British Columbia was forced to resign because he had “liked” inappropriate tweets on his private account.
This should be seen as a continuation of university censorship, which has accelerated in recent years. Moving universities on-line in the face of the coronavirus has done nothing to discourage this trend. Even before the video circulated of George Floyd being killed by a policemen kneeling on his neck (at the end of May 2020), schools were issuing warnings to students not to make inappropriate comments about COVID-19.
The number of highly publicized incidents of hate speech on campuses also appears to be rising, according to a study by the American Association for Access, Equity and Diversity.
What can universities legally do?
Undoubtedly, with the momentum gained by the latest protests, university campuses will be a site for gatherings and demonstrations, both from Black Lives Matter activists and counter-protesters. But public university also have responsibility to respect freedom of association, speech, and expression.
While universities have much more control and discretion over the content taught in coursework, however, issues of public discourse are different. The First Amendment protects speech regardless of whether or whom it offends. Restrictions of the kinds of speech used at public colleges can be considered government censorship, which violates the constitution. Even deeply offensive speech is still constitutionally protected, under state and federal constitutions.
Although constitutional protections do not apply to private colleges and universities, these too have often adopted policies protecting free expression and academic freedom. They are bound by their policies as contracts with students and faculty.
On the other hand, schools are not required to provide a platform for anyone to spread their beliefs or to exercise their free speech rights; but neither are they allowed to actively restrict activities that qualify as constitutionally protected speech.
Speech that is not protected includes true threats or harassment targeted at individuals that creates a hostile environment on the basis of race, sex, religion, national origin, or other protected classes of people. One problem, however, is that many university administrators have readily adopted an ethos in which any speech they consider offensive is also deemed harmful and threatening. But this is not the constitutional standard.
What constitutes threats, harassment, or a hostile environment is subject to ongoing debate, and can change rapidly. Moreover, just because a university administrator may get it wrong, this will not prevent them from trying to discipline students or faculty, with potentially career-altering or career-ending consequences.
It is in these particularly murky cases that it is important to work with experienced higher education attorneys if you are accused of violating university codes or face losing your job due to speech that some within the university find offensive. Contact us today with your questions.