Often seen as the analogue in public higher education to Tinker v. Des Moines Independent Community School District (1969), the Supreme Court’s decision in Healy v. James (1972) differs in four significant respects. First, the Court had less unanimity in Tinker, where Justice Stewart’s concurrence only partially agreed with the majority opinion, and Justices Black and Harlan dissented altogether. Second, perhaps because colleges and universities at the time were, particularly in comparison to elementary and secondary schools, a hotbed of militant demonstrations, the Healy Court was more deferential to the defendant public institutions, leaving the administrators a viable alternative upon remand to sustain their original decision. Third, Tinker relied on First Amendment freedom of expression, while Healy relied more specifically on First Amendment freedom of association. Finally, Healy expressly referred to “academic freedom,” reflecting the ambiguity and, ultimately in this case, the irony, of this concept. Nevertheless, Healy is a comparable landmark decision in higher education, serving as the most famous in the panoply of First Amendment case law concerning public colleges and universities.
Facts of the Case
During the era of civil unrest in the late 1960s, a group of students at Central Connecticut State College organized a local chapter of Students for Democratic Society (SDS), which was a militant national “anti-establishment” organization that promoted not only civil disobedience but also violent disruption in higher education. The students filed an application for official recognition from the college’s committee for campus organizations. The committee expressed concern about the activities of the national SDS organization, to which the chapter representatives replied that their group would remain completely independent and unaffiliated. In response to the committee’s inquiries as to whether they would engage in violent or other disruptive activities, the representatives gave no assurances, stating that it would depend on the circumstances.
After a second hearing, the committee recommended, on a six-to-two vote, that the college’s president approve the group’s recognition application. However, several days later, the president rescinded the approval, explaining that he found the group’s philosophy antithetical to the institution’s policies (including their repudiation of academic freedom) and that he doubted the group’s avowed independence. When the members of the group met in the campus center’s coffee shop to discuss the rejection, the president had them disbanded due to their lack of official recognition.
Dissatisfied with the outcome, the students subsequently filed suit in federal court, claiming that the rejection of recognition violated their First Amendment right to freedom of expression. Ruling that the president had denied the plaintiff-students procedural due process by basing his decision on conclusions about the group’s affiliation that were outside the record before him, the federal trial court in Connecticut ordered him to hold a hearing to explore this matter. At the hearing, the students reaffirmed their lack of connection to the national organization. After reviewing the expanded record, the president reaffirmed his prior decision for reasons paralleling his original explanation, including what he characterized as the group’s “disruptive influence.” The court then summarily ruled in the college’s favor, and the Second Circuit affirmed on a two-to-one vote. The Supreme Court granted certiorari.
The Supreme Court’s Ruling
Justice Powell’s opinion, on behalf of eight members of the Supreme Court, held that public institutions of higher education must not refuse recognition of student groups based on unsupported fear of disruption but instead bear a heavy burden to justify a “prior restraint,” that is, a governmental content-based prohibition of expression, on account of First Amendment protection. The majority first made clear that its 1969 judgment in Tinker applied at least as strongly in higher education.
Finding the denial of recognition to have had a substantial effect, the majority relied specifically on the First Amendment freedom of association, which various precedents have established to be implicit in the freedoms of speech, assembly, and petition. However, reading the “ambiguous state of the record” as providing four possible justifications for recognition, including one that met the requisite burden, the majority remanded the case for further proceedings. The three unacceptable justifications were the group’s relationship to the national SDS, the president’s disagreement with the group’s philosophy, and the unsupported perception of substantially disruptive conduct. The acceptable justification would be the group’s unwillingness to be bound by reasonable institutional rules regarding conduct. The Court found that a remand was necessary to determine whether the College’s recognition procedures required the group to affirm the intent to comply with reasonable campus rules and whether the group was willing to make said affirmation. “The critical line for First Amendment purposes,” according to the majority, “must be drawn between advocacy which is entitled to full protection, and action, which is not.”
Justice Burger’s concurrence merely added the importance of higher education institutions as the primary forum to resolve such competing interests, emphasizing that the courts should be a last resort. Justice Douglas inveighed against the sick state of higher education in terms of academic freedom, concluding: “Without ferment of one kind or another, a college or university . . . becomes a useless appendage to a society which traditionally has reflected the spirit of rebellion.”
Only Justice Rehnquist refused to subscribe to the entire majority opinion, carefully concurring only in the result. Specifically, he expressed serious doubt whether the precedents dealing with criminal sanctions and prior restraints, on which the majority relied in notable part, properly applied to public colleges. For example, Rehnquist noted that it is permissible for government employers or school administrators to impose reasonable regulations on students, which would not be permissible if such regulations were placed on all citizens.
Perry A. Zirkel
See also Free Speech and Expression Rights of Students
Zirkel, P. A. (2000). The first amendment and higher education: Part II: The secular cases. West’s Education Law Reporter, 141, 947–966.
Healy v. James, 408 U.S. 169 (1972).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).