Legal Considerations of Institutions Surrounding Student Activism: Colleges, Universities, and Student Speech

Legal Considerations of Institutions Surrounding Student Activism: Colleges, Universities, and Student Speech

Joshua D. Sheffer
DOI: 10.4018/978-1-5225-7274-9.ch005
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Student activism raises many legal issues for institutions. Many of these issues concern schools' attempts to control or respond to student activists, but institutions must also be wary of the legal implications of their actions and policies aimed at the targets of student activism. In a world of sometimes-competing rights, institutions must balance often-conflicting considerations surrounding student activism. These considerations are multiplied for institutions accepting government funding and even more so for public colleges and universities. This chapter presents a basic framework of the legal issues institutions face surrounding student activism, the current state of the law on those issues, and legal trends, in an effort to help institutions protect their students and themselves while harnessing the learning and development opportunities student activism presents.
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In the United States, student activism has existed nearly as long as schools. Whether on or off campus, student activism has played a prominent role in several movements that have shaped this country. Students and student activism have also been pivotal in many court cases regarding the recognized rights, privileges, duties, and liabilities involved in individuals’ relationships with government entities. Student activism was an important part of the Civil Rights Movement, leading to multiple United States Supreme Court decisions enforcing equal rights and striking down segregation. For example, in 1965, a man leading a peaceful student protest was arrested, charged, and convicted for breaching the peace under Louisiana law. The United States Supreme Court struck down the statute (Cox v. State of Louisiana, 1965). And it was nearly ubiquitous regarding the United States’ involvement in the Vietnam War.

Wherever there is student activism, there are legal implications for the college or university whose students engage in that activism. This chapter does not focus on specific policies for allowing or restricting student activism or on implications involved in making specific institutional changes as a result of student activism. Instead, this chapter focuses on the legal issues that are implicated relating to student activism.

Institutional response to student activism can take many forms. Schools’ most basic responses include allowing or attempting to quell student activism. Throughout the United States of America’s history, colleges and universities have dealt most with the legal impact of attempting to police student activism and protests or stop them altogether. Acceptance and even approval of student activism is, generally, a recent phenomenon. While this acceptance may change the legal issues institutions face, it does not remove them.

Student activism, like other activism, functions through individuals’ association with each other and their ability to express their ideas to the government and society at large. Activism and protest in the United States are protected against government suppression primarily by the First Amendment to the United States Constitution. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (U. S. Const. amend. I)

Of the five rights guaranteed by the First Amendment, freedom of speech and the right “peaceably to assemble” are primarily implicated when dealing with student activism, with freedom of speech greatly monopolizing the discussion.

Understanding the rights and duties of both students and colleges and universities is imperative to a discussion of the legal implications surrounding student activism. For most relevant history, institutions sought to stop or control student protest and other activist behavior, thinking it disruptive to educational goals. Institutional attempts to control conduct implicated students’ rights to speech and assembly, and schools’ duties not to infringe upon those rights. Many colleges and universities have undergone a relatively recent paradigm shift, recognizing student activism as a valuable learning and development opportunity. Although this shift negates many of the student-rights-based legal implications, it correspondingly raises the importance of other legal implications schools must consider regarding opposing views.

Key Terms in this Chapter

In Loco Parentis: A legal doctrine granting an individual or entity the authority over children as if that individual or entity was the child’s parent.

Symbolic Speech: A type of expression that is not “pure speech” or spoken words, but conduct meant to convey a thought or idea.

Forum: The location where speech or expression is carried out. When property is publicly owned, it can be a traditional public forum, a nonpublic forum, or a designated public forum.

Secondary Effects: Effects particular speech or expression have on surrounding areas that are incidental to the speech or expression and not the direct result of hearing the speech.

Content Neutral: A type of speech restraint the applicability of which does not depend on the topic or viewpoint expressed in the speech.

Hecklers’ Veto: Restricting or suppressing otherwise protected speech or expression based on a hostile reaction by those who hear the speech.

Reasonable Restrictions: Restrictions on speech or conduct that are reasonable in light of the goals of the entity seeking to restrict the speech. Reasonable restrictions only need to be reasonable, they do not need to be the most reasonable restriction or the only reasonable restriction.

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