First Amendment & its Impact
on Student Services
Presentation by:
Bev Baligad, J.D.
Director of Student Compliance & Training
Lansing Community College
Agenda
I. What is the First Amendment?
II. Speech/Messages
III.Unprotected Speech
IV.Special Issues
V. Impact on Student Services
'If there is any principle of the Constitution
that more imperatively calls for
attachment than any other, it is the
principle of free thought—not free
thought for those who agree with
us, but freedom for the thought
that we hate.'
-- JUSTICE OLIVER WENDELL HOLMES
-- JUSTICE OLIVER WENDELL HOLMES
Some of the language or messages contained
WARNING:
WARNING….
…this presentation may be considered
offensive to some and acceptable by
others. . .
I. What is the First
Amendment?
“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.”
- First Amendment to the U.S. Constitution
“Congress shall make no law …
abridging the freedom of
speech…”
- First Amendment to the U.S. Constitution
Basically,
Individuals have a right to their beliefs and
opinions, even if they run contrary to our
own beliefs and opinions
Government can’t regulate “protected”
speech
Public colleges cannot violate a student’s
1st Amendment rights (government actor)
II. Speech/Messages
Type:
JPG
“You don’t know sh*t when it comes
to financial aid. Give me my f**king’
money, or I’ll complain to your
Supervisor about what a stupid
a**hole you are.”
- a student we’ve all met at one point
Speech is…
……what you wear, say, read, paint,
perform, believe and protest, and
includes your opinions, even if they
offend others!
Types of Speech:
Oral
example: “That professor is an idiot.”
Written
example: Writing a paper including racial
slurs.
Symbolic
example: the Nazi flag
war.
“It can hardly be argued that either
teachers or students shed their
constitutional rights to freedom of speech
or expression at the schoolhouse gate.”
Tinker v. Des Moines (1969)
III. Unprotected Speech
III. Unprotected Speech
Tinker also stated:
“…conduct by the student, in class or out of it,
which for any reason--whether it stems from
time, place, or type of behavior--materially
disrupts class work or involves substantial
disorder or invasion of the rights of others is, of
course, not immunized by the constitutional
guarantee of freedom of speech.”
“…the right of free speech is not
absolute at all times and under
all circumstances.”
Chaplinski v. New Hampshire (1942)
7 types of “unprotected speech:”
1.
2.
3.
4.
Fighting words
Obscenity
Defamation
Insubordination (gross disobedience of
legitimate rules)
5. Illegal advertising
6. True Threats
7. Harassment
Unprotected speech Student Services
professionals most likely will encounter:
•
•
•
•
Incitement (“Fighting words”)
Obscenity
True threats
Harassment
A. Incitement (aka “Fighting words”)
1) Words which by their very utterance
inflict injury
OR
2) tend to incite an IMMEDIATE breach of
the peace.
“We’ll take the f**king street
later.”
Hess v. Indiana (1973)
B. Obscenities
Obscene language?
“Listen up, you fucking maggot…
On January 2008, I was expelled because your fucking
inbred, crackpot employees couldn’t be bothered to
accommodate my disability.
They say I made a ‘terroristic threat.’ That is fucking
bullshit! I didn’t fucking threaten anyone. YOU TOOK
IT THAT WAY!”
-Stebbins v. University of Arkansas (2012)
Offensive?
Offensive ≠ Obscenity
Obscene Language ≠ Obscenity
Obscenity
Must meet 3 requirements to be unprotected:
1) Whether an average person would find that the work (as a
whole) appeals to a lewd interest; and
2)It depicts sexual conduct specifically defined by state law;
and
3)It lacks serious, literary, scientific, artistic or political value
Miller v. California (1973)
- Papish v. Board of Curators of the University of Missouri (1973)
“F**K THE DRAFT”
Cohen v. California (1971)
C. True Threats
True Threats
1. A reasonable recipient would believe the
statement is a serious expression of an intent to
harm or cause injury to another, AND
2. It does not matter if the speaker intends or is
capable of carrying out the threat.
“You don’t know shit when it comes to
financial aid. Give me my friggin’
money, or I’ll complain to your
Supervisor and tell them you should be
fired.”
Threat????
True Threat Example
“Regardless, every person of sound mind has a breaking
point; a limit to what they can tolerate under a given
set of conditions and the law abiding student with an
extremely hard head is not immune to a psychotic break
and subsequent killing spree under the right wrong
conditions…there is no reason for him to assume that I
am incapable of responding to outrageous
transgressions…because I am not playing. This is not
included for shock value.”
O’Neal v. Alamo Community College (2010)
D. Harassment
Harassment
1) The environment must be both objectively &
subjectively offensive
2) A reasonable person would find the communication
hostile or abusive
3) The victim did perceive the communication to be
hostile or abusive
4) Frequency of the conduct and its severity will be
looked at
- Doe v. New Philadelphia Public Schools
Board of Education (1998)
Harassment
“We conclude that such an action will lie
only for harassment that is so severe,
pervasive, and objectively offensive that it
effectively bars the victim's access to an
educational opportunity or benefit.”
- Davis v. Monroe County (1999)
Many Codes of Conduct:
• Includes harassment language in them
• Defines what harassment is
• Institutions need to make sure definition does
not violate the 1st Amendment
• @ LCC, “severe pervasive, objectively offensive
and it limits access to education or benefit”
(Davis language)
• Make sure you know how harassment is defined
Remember:
Any speech that is NOT unprotected, will
most likely be protected- the student may
have a right to say it, even if you don’t like
to hear it!
IV. Special Topics
Hate Speech
“The lesson I have drawn from my childhood in Nazi
Germany and my happier adult life in this country is the
need to walk the sometimes difficult path of denouncing
the bigot's hateful ideas with all my power, yet at the
same time challenging any community's attempt to
suppress hateful ideas by force of law.”
Prof. Gerald Gunther, re: Virginia v. Black (1998)
Hate Speech
• Aimed at a particular group of
individuals because of some shared
belief or characteristic
• Usually is speech that may be
protected
• May be unprotected (elements of
harassment, true threats, etc.)
So, why can’t we just require
students to be “respectful” to
one another?
Incivility Codes
It is a violation of the First Amendment
to prohibit “rude, disrespectful behavior”
or to punish for “incivility.”
- College Republicans v. Reed
IV. Impact on Student Services?
• 1st Amendment issues often makes folks in Student Services feel
powerless
• Understand that even if what the student says may offend you, a lot
of times that speech may be protected by the 1st Amendment
• Be prepared to understand the difference between Protected and
Unprotected Speech
• If unprotected speech, your Code will usually cover it (disruption,
harassment, threats, etc.)- report to your Conduct officer, if you
cannot seem to get the student to respond in a reasonable manner
• Learn techniques on how to effectively deal with difficult students
• In other words……..
Don’t respond to this
….with this
Instead, focus on “educational
opportunities”
Any Questions or Comments?