Three years after Tinker, the Supreme Court, in Healy v. James (1972), overturned the refusal of officials at a state college to permit students to form a local chapter of Students for a Democratic Society based on the fear that it would have been disruptive to campus life. In the process, the Court set the foundational principle for determining when it is acceptable to limit the speech of students at colleges and universities. The Court found that college officials, acting as instrumentalities of the state, may not restrict student free speech or association rights simply because they find the perspectives expressed by any group abhorrent.
Nine years later, in Widmar v. Vincent (1981), the Supreme Court reviewed the free expression claims of a religious student group for the first time. The litigation began when officials denied the group permission to meet in university facilities pursuant to an institutional regulation prohibiting the use of campus buildings or grounds for religious worship or religious teaching. In rejecting the university’s claim that its position was required by the Establishment Clause, the Court, citing both Tinker and Healy, held that the First Amendment rights of speech and association extend to the campuses of state universities and that once officials extended the university’s forum to the expression of other student groups, they had to do the same for the religious groups. To this end, the Court asserted that the issue was no longer whether the university was advancing religion under the Establishment Clause by permitting the religious groups to meet, but whether officials could have excluded groups based on the content of their speech. In balancing the university’s responsibilities under the Establishment Clause not to advance religion, and under the Free Speech Clause not to make content-based restrictions of student expression, the Court determined that content-based discrimination against the group’s religious speech was neither required by the Establishment Clause nor permitted under the Free Speech Clause.
In essence, the Widmar Court ruled that once university officials opened facilities for use by student groups, attempted restrictions of the expressive religious views of the organizations under the Establishment Clause was trumped by the organizations’ expressive rights under the Free Speech Clause. It is worth noting, though, that the Court was careful to specify that it had no intention of undermining the authority of officials to enact reasonable regulations concerning the time, place, and manner of use. At the same time, the Court made it clear that it had no desire to question the authority of officials to make academic judgments about the allocation of scarce resources or to decide independently on academic bases who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Fourteen years after Widmar, the Supreme Court, in Rosenberger v. Rector and Visitors of the University of Virginia (1995), addressed whether the Free Speech Clause required equal access to university funding to finance a religious organization’s publication. The university’s written policy was to use a portion of mandatory student fees to fund the printing costs of student organizations’ publications. Even so, officials denied funds for the student publication, Wide Awake: A Christian Perspective at the University of Virginia, pursuant to a provision in its policy prohibiting the use of funds for any group that primarily promoted or manifested a particular belief in or about a deity or an ultimate reality. Insofar as the Court, in invalidating the policy, viewed the denial of funds as being the same as the denial of facilities in Widmar, it treated the dispute as one involving viewpoint discrimination under the Free Speech Clause rather than as promoting or advancing religion under the Establishment Clause. In effect, as long as a university rule applies in a neutral manner to all student organizations, the Court concluded that the Establishment Clause’s prohibition on advancing religion could not be used as a basis to justify viewpoint discrimination.
Five years after Rosenberger, the Supreme Court, in Board of Regents of the University of Wisconsin System v. Southworth (2000), revisited university funding of student organizations. This time students alleged that the university’s allocation of mandatory fees to organizations with which they disagreed violated their free speech and free exercise of religion rights under the First Amendment. In rejecting the students’ claims, the Court held that the viewpoint neutrality requirement of the university program in terms of eligibility for funds was sufficient to protect the rights of the objecting students. The Court maintained that while university officials could not object under viewpoint neutrality to the funding of the viewpoints of religious student groups as in Rosenberger, neither can students object to a university’s allocation of funds pursuant to a viewpoint-neutral policy of encouraging different viewpoints as in the case at bar. However, the Court remarked that a part of the university’s funding policy allowing a student referendum to defund a student organization presented free expression problems, because insofar as a referendum substituted the majority’s choice for viewpoint neutrality, it would have undermined the constitutional protection that the program required. The Court commented that the theory of viewpoint neutrality is that minority views are to be treated with the same respect as majority perspectives.
The effect of Widmar and Rosenberger has been to solidify the principles that the Free Speech Clause’s viewpoint neutrality requirement obligates officials to treat religious organizations the same as other nonreligious groups and that permitting student religious expression on campuses pursuant to such viewpoint neutrality does not violate the Establishment Clause. Still, as Southworth recognizes, neutrality can be used to further university purposes even when it is at odds with religious beliefs. Consequently, while colleges and universities enact nondiscrimination policies prohibiting discriminatory practices by student organizations, it is unclear how officials can resolve disputes when the actions of one protected category affect those of individuals in another category.
In Christian Legal Society v. Walker (2006), a religious student organization in a law school was granted injunctive relief against efforts to revoke its official recognition for excluding homosexuals from voting membership on religious grounds. The Seventh Circuit ruled that the law school’s antidiscrimination policy protecting students from discrimination based on sexual orientation, among other categories, was not sufficiently compelling to outweigh the organization’s interest in expressing its disapproval of homosexual activity. The court observed both that law school officials violated the organization’s free speech rights by excluding it from a speech forum that they had created and that they had not excluded other student groups with restrictive membership requirements based on race, national origin, and gender. In effect, the court acknowledged that the application of the university’s antidiscrimination policy to force inclusion of those who engaged in, or affirmed, homosexual conduct would have significantly affected the ability of the student organization to express its disapproval of homosexual activity, because it could not have conveyed its disapproval of certain types of conduct if it had to accept members who engaged in that conduct. Yet, as reflected by a case from the Ninth Circuit with the opposite outcome, Christian Legal Society Chapter of University of California v. Kane (2009), not all courts agree that universities lack a compelling interest in enforcing their antidiscrimination policies against the religious speech claims of student organizations.
The balancing process described above has been applied in other situations regarding the use of college or university property for expressive activities. In Orin v. Barclay (2001), the Ninth Circuit addressed the use of public community college property by three members of a right-to-life advocacy group. College officials permitted the group to gather in the quad that was used by other groups to advocate their causes but imposed three requirements on its use of the quad. Under the conditions, the group could not breach the peace or cause a disturbance, interfere with campus activities or access to school buildings, or engage in religious worship or instruction. When the participants began stating their right-to-life claims in religious terms and were removed from the campus, they promptly filed suit, alleging that the conditions were unconstitutional. In reversing a grant of summary judgment that had been entered on behalf of the college, the Ninth Circuit explained that while the first two conditions represented constitutionally permissible limitations on free expression, the third was an unconstitutional restriction and, therefore, the official responsible for imposing it could be sued individually under Section 1983 of the Civil Rights Act. In addition, because religious expression was an established constitutional right at the time the restriction was imposed, the court added that the official was not entitled to qualified immunity.
The authority of college and university officials to enact regulations limiting expression has not fared well in the courts, which have generally required that any restrictions must reflect a compelling interest and must be narrowly tailored to reach that compelling interest. In Khademi v. South Orange County Community College (2002), for example, a federal trial court in California struck down, as a prior restraint on speech, a regulation that delegated complete and unfettered discretion to the campus president to permit or prohibit expression that might be considered offensive. The lack of objective guidelines to define whether speech was offensive led the court to find that the requirement was not narrowly tailored to reach a compelling governmental interest. On the other hand, the court conceded that college officials did have a compelling interest in preventing the campus from being used for unlawful acts, such as using, distributing, or selling illegal substances, and in prohibiting substantial disruption to campus operations. Similarly, the court thought that officials could restrict expressive activities on college lawns during maintenance or on facilities for which preexisting reservations existed. Also, the court was convinced that college officials could not prohibit the posting of materials advertising student activities nor could they forbid individuals from placing leaflets on windshields, in parking lots, and inside buildings.
The protective attitude taken by federal courts toward student expression has been manifested in efforts by higher education institutions to prohibit hate speech. Federal trial courts in Doe v. University of Michigan (1989) and UWM Post v. Board of Regents of the University of Wisconsin System (1991) struck down policies prohibiting physical or verbal behavior that stigmatized or victimized individuals as to a broad list of protected categories, reasoning that the policies were so broad as to make distinguishing among classroom speech, academic discussions, and research impossible to accomplish. In Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993), the Fourth Circuit affirmed a grant of summary judgment in favor of a fraternity regarding its “ugly woman contest.” According to the court, the activity constituted protected speech, even though it was a form of lowgrade entertainment. The Court therefore held that officials could not silence speech simply to further the university’s interest in providing gender-neutral education free of discrimination and racism.
Further, in Saxe v. State College Area School District (2001), the Third Circuit invalidated a local school board policy prohibiting the creation of an intimidating, hostile, or offensive environment on the ground that it was overbroad and unconstitutional, because it included teasing, name-calling, joke-telling, and mimicking. In sum, it is important to keep in mind that because colleges and universities are for adult students, courts are far less willing to restrict expressive rights than they might in K–12 schools.
See also Civil Rights Act of 1871, Section 1983
Mawdsley, R. D. (2007). Sailing the uncharted waters of free speech rights in public schools: The rocky shoals and uncertain currents of student t-shirt expression. Education Law Reporter, 219, 1–23.
Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000).
Christian Legal Society Chapter of University of California v. Kane, 2006 WL 997217 (N.D. Cal. Apr. 17, 2006), aff’d without opinion, 2009 WL 693391 (9th Cir. 2009).
Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).
Civil Rights Act of 1964, Section 1983, 42 U.S.C. § 1983.
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
Healy v. James, 408 U.S. 169 (1972).
Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993).
Khademi v. South Orange County Community College, 194 F. Supp. 2d 1011 (C.D. Cal. 2002).
Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001).
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).
Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001).
Tinker v. Des Moines Community School District, 393 U.S. 503 (1969).
UWM Post v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991).
Widmar v. Vincent, 454 U.S. 263 (1981).