Abstract
Higher education administrators continue to encounter ever evolving challenges related to the First Amendment on college campuses. As administrators encounter lawsuits ranging from protests, student media, student organization funding, campus speakers, and beyond, they must be equipped to navigate these scenarios. Ultimately, the key is gaining a better understanding of the history, relevant case law, tools to analyze the situation, and how the First Amendment may appear in their work. The chapter seeks to provide a foundation of knowledge related to the First Amendment and its application to higher education.
TopIntroduction: The First Amendment And Higher Education
The First Amendment is an often cited and yet frequently misunderstood part of the American vernacular. As the world navigates a pandemic, First Amendment arguments can be heard across the United States related to mask mandates, social media posts, campus protests, and beyond. It is more important than ever that individuals understand what the First Amendment is, but also what it is not. Understanding the First Amendment is also a core facet of preparing individuals to be civically engaged citizens and non-partisan entities like the Tommy G. Thompson Center on Public Leadership have expressed concern that undergraduate students are not being adequately educated on this topic. In 2021, the Thompson Center, released their findings after surveying undergraduate students at the University of Wisconsin-Madison. The Thompson Center labeled the findings “troubling” and found many students “do not understand what constitutes protected speech or activity under the First Amendment” (Thompson Center, 2021). For example, 63% of students believed the government should punish hate speech and over 50% of students believed the government should restrict the speech of racially insensitive people (Thompson Center, 2021). This view is not limited to students. College administrators must face the competing pressures from individuals who demand unadulterated free speech on campus and those who want to limit speech in the pursuit of an inclusive campus culture (Hibel, 2018). Andrew Hibel, Co-Founder of HigherEdJobs, interviewed Dr. Kevin Kruger, the President of NASPA-Student Affairs Administrators in Higher Education, on this topic in 2018 (Hibel, 2018). Dr. Kruger explains the need for colleges to promote civility and the importance of hearing and processing different viewpoints:
Colleges need to create safe environments for students to talk to each other about their own beliefs and hear what others may express. This core ability to hear a different person's perspective, understand it, and talk about your perspective in a constructive way is an important skill set. This discourse is a bedrock of democracy. It is how we become a better society. These skills are increasingly important as we move forward in today's polarized society, and colleges are one place where we can make progress on this (Hibel, 2018).
In order to promote civic engagement and to strengthen democracy, colleges have an obligation to promote a deeper understanding of the First Amendment and create a culture of civility. However, in pursuit of this goal college administrators face increased risk for litigation and protests. For example there were numerous lawsuits from just the past year: Arizona State University (Journalism student sues over fallout from controversial tweet); Chemeketa Community College (challenge to outdoor speech zones); Florida State University (removed Student Government official claiming administrators failed to protect his First Amendment rights); Iowa State University (sidewalk chalking ban and other limits of political expression), Marquette University, Xavier University and Harvard University (rescinded admissions offers due to offensive social media posts); Montclair State University (shutting down a gun rights demonstration led by a student organization); Scottsdale Community College (challenge to professor’s right to academic freedom related to religion); and, University of Connecticut (removing students from university housing after they were arrested for shouting racial slurs). There are countless others. It is clear college administrators must understand the First Amendment to not only foster civility and educate students, but to also protect themselves and their institutions.
This chapter seeks to provide administrators and staff with the tools to successfully understand and navigate the First Amendment. The authors will provide a historical foundation for the First Amendment, highlight common areas where the First Amendment presents within higher education, discuss protections and exceptions, and ultimately provide strategies for administrators and staff to effectively engage others on this topic. Many of the cases related to the First Amendment center on the rights of students, but understanding the context is key for the individuals pursuing this work. It is our hope that together higher education administrators and staff can educate ourselves to promote civility and ultimately generations of civically engaged individuals.
Key Terms in this Chapter
Bill of Rights: The Bill of Rights are the first ten amendments to the U.S. Constitution. This includes the First Amendment and overall the Bill of Rights establishes the rights of Americans related to the U.S. Government. The liberties created by the Bill of Rights include broad ranging civil rights from freedom of speech to religion and the creation of due process. The Bill of Rights also establishes that any power not explicitly granted to the Federal Government is reserved for the people or the States.
Hierarchy of Law: The American legal system works in a hierarchical manner with the U.S. Constitution at the top. Essentially a constitution, rule, or law cannot contradict a constitution, rule, or law that is higher in the hierarchy. For the purposes of this chapter, it is important to know that the U.S. Constitution is the highest and is higher than laws that are enacted by Congress. Laws that are enacted by Congress are higher than state constitutions. State constitutions are higher than laws enacted by the state legislature. Finally, laws enacted by the state legislature are higher than the rules and regulations that are enacted on your campus. This excludes rules from federal or state agencies and city or county charters, ordinances, or rules that also fit within the hierarchy.
Fire: The Foundation for Individual Rights in Education (FIRE). This is a non-profit group that advocates for the protection of free speech rights on college and university campuses.
Writ of Certiorari: A court process where a higher court determines if it will review the decision of a lower court. In the case of the U.S. Supreme Court, four justices must agree to hear a case in order for the Court to “grant cert.” If they deny certiorari then the decision of the lower court will remain in place.
Free Speech: Often a shorthand term used interchangeably with First Amendment issues. It is important to note that the two words are not interchangeable.
Common Law or Case Law: Common law or case law (can be used interchangeably) refers to the body of law that is created by judicial cases. This differs from a statute or laws passed by a legislature.
Tabletop Exercise: A real-time experience designed to walk a team of people through a simulated experience in order to test protocols, develop communication strategies and prepare for real-time complex situation management.
Staff: University employees who do not hold the title of faculty. Staff work in a variety of areas of the institution including student affairs, facilities, enrollment management, admissions, communications, legal affairs, public safety, and finance just to name a few.
Court vs. Court: When Court has a capital C in reference to a federal court it is referring to the U.S. Supreme Court.
Due Process Clause: The U.S. Constitution guarantees that no one shall be “deprived of life, liberty or property without due process of law” (U.S. Const. amend 5 and 14). The Fifth Amendment requires this from the federal government and the Fourteenth Amendment guarantees this from all of the states. These two amendments create the framework to guarantee the government provides fair procedures and operates within the law.
Stare Decisis: A legal concept that states the court should follow the established precedent from previous cases when hearing a case with similar facts. This does not mean a court cannot differ from the established precedent, but as a general rule deference should be given to the established precedent.
Orientation: University led transition programs to support new students to ensure they are prepared to be successful at the institution.