Colleges and Universities

The First Amendment prohibits the federal and state governments from infringing on freedom of speech. Not surprisingly, freedom of speech, which is central to academic freedom, is highly prized on college and university campuses. At the same time, most educational institutions recognize the importance of maintaining an atmosphere in which all students enjoy equal educational opportunities and freedom from discrimination. The need to balance differing individual rights has led many universities to enact policies purporting to regulate or discipline certain types of speech, and was the focus of many First Amendment cases in the 1980s and early 1990s.

Racially and religiously motivated acts of VANDALISM, intimidation, and violence on college campuses began to attract increased attention in the mid 1980s. Much of this activity involved incidents like the following:

• A fraternity fund-raising "slave auction" featuring fraternity members in blackface who were "sold" to provide services to bidders
• The distribution at a state school of leaflets warning,"The Knights of the KU KLUX KLAN Are Watching You"
• A poster made by a student and hung on her dormitory room door, listing "homos" as a category of people who would be "shot on sight"

In response, many universities adopted policies that prohibited speech and conduct that caused offense or interfered with educational opportunities based on any number of characteristics, especially race, national origin, gender, and religion. The University of Michigan adopted a typical policy on discrimination and discriminatory harassment that became the subject of a lawsuit in 1989. In Doe v. University of Michigan, 721 F. Supp. 852 (1989), the U.S. District Court for the Eastern District of Michigan examined this policy and determined that it violated the First Amendment because it was vague and overbroad—that is, it was unclear about the scope of the speech that it would affect and thus potentially encompassed constitutionally protected speech. Doe was filed by a graduate student who feared that his theories about genetic bases for differences between men's and women's relative abilities to perform certain tasks would be regarded as a violation of the policy were he to discuss them in class, because some students might regard them as sexist and offensive.

The court agreed that the university policy violated the First Amendment and had a "chilling effect" on the free exchange of ideas. The court observed that the policy certainly applied to speech that would not be constitutionally protected, such as imminent threats of violence, but also swept under its umbrella speech that might be controversial or even offensive but otherwise constitutionally protected. "It is firmly settled," noted the court,

that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. These principles acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's education mission.

The court then observed that because Michigan's policy was so vague that it encompassed even constitutionally protected speech, and because this vagueness led to the potential for ARBITRARY enforcement, the policy was unconstitutional.

First Amendment protection is not limited to the classroom setting alone. In Iota Xi Chapter v. George Mason University, 993 F.2d 386 (1993), the U.S. Court of Appeals for the Fourth Circuit held that George Mason University, a state university, had violated the Sigma Chi Fraternity's First Amendment rights by suspending its privileges as a university organization after the fraternity held an event, called the Ugly Woman Contest, that depicted women in a particularly degrading manner. The court held that skits, like motion pictures, movies, theatrical productions, and nude dancing, are a form of expression that are entitled to First Amendment protection.

Public university professors and employees also enjoy First Amendment protection, but as workers in the public sector, they are subject to certain limits. Generally, unlike private-sector employees, who may be disciplined or terminated for nearly anything that is not prohibited by state or federal law, public-sector employees may not be disciplined on the basis of their speech if the speech involves a matter of public concern. The state may discipline an employee if it can show that it would have done so regardless of the speech, or if the speech actually interfered with the effective fulfillment of public responsibilities.

In Jeffries v. Harleston, 52 F.3d 9 (1995), the U.S. Court of Appeals for the Second Circuit held that the City College of New York could reduce the term of a black studies professor's chairmanship based on an off-campus speech he had made (which had included derogatory remarks about Jews) about bias in the New York public-school system. The court ruled that although the speech involved an area of public concern, the college was justified in reducing Jeffries's term because it was motivated by a reasonable prediction that the speech would adversely affect the school's operation. In an earlier case, the same court had held that the City College of New York could not undermine a philosophy professor's classes by setting up "alternative" sessions for students who might want to transfer out of the classes after the professor had published letters to scholarly journals that denigrated the intelligence of blacks (Levin v. Harleston, 966 F.2d 85 [1992]).

Even so, not all speech by public university employees is protected. Employees still may be disciplined for speech that does not involve an area of public concern, as the courts have defined it. In Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995), the district court upheld the termination of a basketball coach who used the term nigger in a locker-room pep talk. The university refused to renew the coach's employment contract, arguing that his use of the term violated the university's policy on racial and ethnic harassment. Although the court found that the school's policy violated the First Amendment (for the same reasons as in Doe), it also found that the coach's speech did not involve an area of public concern.

A public institution also may restrict religious speech by faculty if failure to do so would violate the First Amendment's Establishment Clause (Bishop v. Aronov, 926 F.2d 1066 [1991]). In Bishop, the U.S. Court of Appeals for the Eleventh Circuit held that the University of Alabama could constitutionally restrict a professor from discussing his religious views during class, and could instruct him not to hold optional class sessions to discuss Christian perspectives on academic topics. The court noted that were the professor permitted to engage in these activities, the university would risk violating the Establishment Clause, which prohibits states from establishing religion and, by extension, extending preferential treatment to, or endorsement of, a particular religious view.