FREE SPEECH, FREE EXERCISE, AND FREE ASSEMBLY
IN COLLEGES AND UNIVERSITIES: TOPICS TO CONSIDER
WHEN DRAFTING CAMPUS RULES AND POLICIES
I.
Public College or University
A. Generally
1. As “state actors,” public colleges and universities must comply with the U.S. and
respective State Constitutions, Title VII, Title IX, state discrimination statutes, and other
applicable federal and state laws.
2. Public institutions must also comply with their own rules, and may choose to provide
even greater protections to students and employees than those provided by law.
a. Therefore, universities and colleges must be careful not to draft policies in an overly
broad manner to create additional unexpected rights unless it is their specific intent
to do so.
3. Organization to be aware of: Foundation for Individual Rights in Education (“FIRE”).
B. Free Speech
1. Generally:
a. First Amendment Text: 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.
b. The First Amendment’s Free Speech clause limits the ability of the government (and
therefore, public colleges and universities) to interfere with the right to speak,
including what one wears, reads, says, tweets, posts on the internet, paints, performs,
protests, or even silently resists. See, e.g., Ashcroft v. American Civil Liberties
Union, 535 U.S. 564, 573-74 (2002); Texas v. Johnson, 491 U.S. 397, 404-05 (1989).
2. Employee Speech
a. Prior to 2006, to determine whether a public employer’s actions violated an
employee’s free speech rights under the First Amendment, courts would evaluate: (1)
whether the speech addressed a matter of public concern, (2) whether the employee
suffered an adverse employment decision, and (3) whether a causal connection
existed between the employee’s speech and the adverse employment decision.
Connick v. Myers, 461 U.S. 138 (1983).
b. In Garcetti v. Ceballos, 547 U.S. 410 (2006)the United States Supreme Court
redefined the standard for public employee speech rights – by holding that an
employee does not speak as a citizen on a “matter of public concern” if the
employee’s speech owes its existence to the employee’s professional responsibilities.
i. For example, under Garcetti, if an employee is disciplined for a memo the
employee wrote pursuant to his or her job responsibilities, this speech is not
protected – even if the memo concerned issues that would concern the public.
c. However, the Supreme Court observed that in Garcetti, it was not necessary for the
Court to decide whether its holding applied to cases involving speech related to
scholarship or teaching.
i. It is currently unclear whether this speech would be granted additional protection.
(Ex. Second Circuit, in Ezuma v. City University of New York, 367 Fed.Appx.
178 (2d Cir. 2010), applied Garcetti to speech of teachers and professors although
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this speech arguably was not related to scholarship or teaching – but Fourth
Circuit, in Adams v. Trustees of the University of N.C.-Wilmington, 640 F.3d
550 (4th Cir. 2011), expressly held that Garcetti was inapplicable to the academic
work of a university faculty member).
ii. NOTE: Cases distinguish between public university faculty members who are
assigned duties to engage in scholarship or teaching versus members whose roles
mainly involve administering university policy. Cases also distinguish between
speech related to scholarship or teaching and other faculty speech.
d. Even if Garcetti is inapplicable, the pre-Garcetti three part test still applies, and the
faculty member’s speech will only be protected if he or she suffered an adverse
employment decision that was caused by his or her speech regarding a matter of
public concern.
e. NOTE: State statutes should also be consulted to determine whether any provide
additional protections to employees to speak on certain protected topics. (Ex. Taylor
Law in New York, N.Y. Civil Service Law §§ 200-214). Regulations of local
administrative boards (ex. Public Employee Relations Board (“PERB”) in New York)
should also be consulted.
3. Student Speech
a. Student “speech” generally is protected under the First Amendment.
b. Speech that is not protected and can be prohibited on campus includes:
i. Fighting words (words that would tend to provoke the individual to whom they
are addressed into responding immediately with violence) (see, e.g. Gilles v.
Davis, 427 (3d Cir. 2005) (an evangelist’s comments at a state university
campus, directed at a woman who identified herself as both Christian and
lesbian, including “Christian lesbo,” “lesbian for Jesus,” “do you lay down with
dogs,” and “are you a bestiality lover,” constituted fighting words that were not
protected by the First Amendment).
ii. Incitement (speech that immediately provokes imminent unlawful action)
iii. Obscene material, child pornography, or in some instances, other “indecent”
sexually explicit material (particularly if minors may be exposed to the material)
iv. Words amounting to intentional infliction of emotional distress (utterly
intolerable in a civilized community) or sexual harassment (can be sued upon)
v. See U.S. v. Alvarez, 132 S.Ct. 2537, 2543-44 (2012).
c. Free speech activities can be regulated if policies are narrowly tailored and allow for
ample means of communication, and the expression:
i. is not prohibited because of a disagreement with or dislike for its content; and
ii. is subject to reasonable regulation of time, place, and manner.
iii. NOTE: To be “narrowly tailored,” policies must not extend any farther than
necessary to protect the state’s interest. Schools should be especially cautious
with respect to sexual harassment and online harassment policies, which may be
overbroad or vague. (Ex. policy that prohibits “inappropriate” or “offensive”
speech or conduct without specifically defining what these terms mean).
d. Speech and speech-related activities can be regulated if they materially or
substantially interfere with the school’s normal activities or invade others’
rights. See Tinker v. Des Moines Independent Community School Dist., 393
U.S. 503, 513 (1969).
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e. Student Newspapers:
i. Same free speech concepts apply to student-run newspapers.
ii. Schools must fund all student organizations’ publications equally.
iii. Caution: student newspapers should be encouraged, as a matter of self-imposed
professional ethics, to avoid activities that could amount to an invasion of
privacy (e.g., Kate Middleton photos, in September 2012).
iv. It may infringe First Amendment rights to punish students for publishing certain
content (e.g., Mohammed cartoon controversy in September 2012), unless an
exception (such as incitement) applies.
f. Expressive or Symbolic Conduct:
i. Could include rallying, protesting, picketing, marching, distributing pamphlets.
ii. Degree of potential restrictions on speech depends on location of speech
1. Traditional or designated public forum: e.g., city or campus streets and
parks. Reasonable time, place, and manner restrictions are allowed, but
any restriction based on the content of the speech must satisfy strict
scrutiny, that is, the restriction must be narrowly tailored to serve a
compelling government interest, and restrictions based on viewpoint are
prohibited. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 46970 (2009). (Ex. traffic management during hours of event).
2. Limited public forum: public property the state has limited to use by
certain groups or dedicated solely to the discussion of certain subjects
(e.g., conference centers, theaters, stadiums). In a limited public forum,
restrictions on speech must be reasonable and viewpoint-neutral. See
Pleasant Grove, 555 U.S. at 470.
3. Non-Public forum: not open to the public, and governed by school’s
regulations (classrooms and residence halls). Can regulate time, space,
and manner, and reserve forum for intended purposes. Can also exclude
speakers on the basis of their subject matter, so long as the distinctions
drawn are viewpoint neutral and reasonable in light of the purpose
served by the forum. See Davenport v. Washington Educ. Ass'n, 551
U.S. 177, 188-89 (2007).
C. Free Exercise
1. Generally:
a. First Amendment Text: 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.
b. The First Amendment’s Free Exercise clause protects religious individuals and
groups from specifically-targeted, anti-religious government action.
2. Employee Exercise
a. Under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), schools must
offer “reasonable accommodations” to allow employees to practice religious beliefs
(eliminates conflict between employees’ religious practices and work requirements,
and does not cause an undue hardship for the employees).
b. Universities and colleges may be liable to employees for violations if: (1) employees
have bona fide religious beliefs that conflict with an employment requirement; (2)
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the employers were made aware of the conflicts; and (3) employees were subjected
to an adverse action for not complying with the employment requirement.
3. Student Exercise
a. Schools may enact rules and regulations that incidentally interfere with religious
practice, but only if such measures are both “neutral” towards religion and “generally
applicable” to members of the university community. Christian Legal Soc. Chapter
of the University of California, Hastings College of the Law v. Martinez, 130 S.Ct.
2971 (2010).
b. Accordingly, public colleges and universities may not discriminate against some or
all religious beliefs, or regulate or prohibit conduct because it is undertaken for
religious reasons. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 532-33 (1993). (Ex. cannot impose special disabilities on the basis of
religious views or status, punish the expression of religious doctrines, or side with
one religious group over another in controversies concerning religious theology).
c. NOTE: Even “neutral” and “generally applicable” rules may be unconstitutional if
they affect religious liberty and other First Amendment rights, such as the freedoms
of speech and association.
D. Freedom of Association
1. Generally:
a. First Amendment Text: 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.
b. Freedom of association protects the right to form organizations, to advance particular
viewpoints, and to associate with others of like mind. See Knox v. Service
Employees Intern. Union, Local 1000, 132 S.Ct. 2277, 2288 (2012).
2. Right to Unionize
a. Employee Unionization
i. As public employees, faculty members of public colleges and universities have
the right to unionize. Local administrative boards’ regulations should be
consulted on a state-by-state basis to determine more specific qualifications.
b. Student Unionization
i. Graduate students and teaching assistants in public institutions have the right
to unionize. Many have done so. E.g., SUNY (see Balaban v. Local 1104,
Communications Workers of America, 2009 WL 3254909 (N.D.N.Y. 2009)).
Again, local administrative rules should be consulted.
3. Expressive Association (Clubs and Organizations)
a. Student Expression
i. Schools May Not:
1. Deny recognition to some student organizations and not others
(including religious, political, gender-based, or other organizations)
(Healy v. James, 408 U.S. 169, 181 (1972))
2. Adopt policies that place a significant burden on the organization’s
ability to carry out its message – including a policy that would require
groups to include unwanted members; or
3. Deny military recruiters access to campus (Solomon Act, 10 U.S.C. §
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983).
ii. Schools May:
1. Adopt and apply reasonable rules for the conduct of student
organizations, so long as rules are equally applied (Healy v. James, 408
U.S. 169, 181 (1972);
2. Charge a mandatory student activity fee, so long as allocation of the fee
is viewpoint neutral; and
3. Allow organizations to restrict membership and/or participation in their
events.
II.
Private College or University
A. Generally
1. Private colleges and universities are not considered state actors, so their actions are NOT
necessarily governed by the First Amendment provisions of the U.S. Constitution or
similar governmental constraints imposed by State Constitutions.
2. Private colleges and universities are free, within broad legal parameters, to define their own
missions. Some permissibly restrict academic freedom on behalf of a particular religious or
other agenda.
3. BUT private colleges and universities still must:
a. Comply with the Title VII (42 U.S.C. § 2000e) prohibition against discriminating
against any employee because of his or her “race, color, religion, sex, or national
origin,” which includes making reasonable religious accommodations for employees.
b. Be careful not to prohibit employee speech protected by the National Labor Relations
Act (“NLRA”) (29 U.S.C. §§ 151-69).
c. Obey the conditions explicitly attached to any government funds they receive
(including Title VI (42 U.S.C. § 2000d), which generally prohibits discrimination on
the basis of race and ethnicity) as well as Title IX [20 U.S.C. 1681-1688] which
generally prohibits discrimination in education on the basis of gender.
d. Strictly follow the written rules and policies they adopt and establish.
e. Be mindful of common law and state law prohibitions (including, fraud and breach of
contract).
B. Common Law Rights:
1. Contractual Rights Created through Handbooks or Policies
a. In most states, court decisions have established that a college or university must adhere
to its own written policies, rules, and guidelines (based on either contract theory or
application of the law of associations).
b. Institutions can afford employees and students contractual speech, expression, and
religious exercise rights through a handbook or policy.
c. Employees:
i. In some states (such as NY), an employee can challenge an adverse employment
action of a private university based on its failure to comply with its written
policies, so long as the employer made the employee aware of its express
written policy. . . and that employee detrimentally relied on that policy in
accepting the employment.
d. Students:
i. An implicit contract exists between a university and its students to discipline its
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students fairly, equally, and in “good faith,” in accordance with its specified
rules (this rule applies to speech, expression, or religious rights based
discipline). The school can afford rights through their policies, even though the
school is not required by law to do so.
e. Be careful of the phrases “freedom of speech” and “due process.” These phrases are
legal terms of art that have been specifically defined through extensive bodies of case
law. If these terms are used, existing published legal authorities may apply which
could result in an interpretation of the meanings of the terms differently than intended
by the institutional author.
2. Fraud and Misrepresentation
a. Common law in many states prohibits schools from making deceptive promises that
induce students or teachers to contract with the schools.
If school materials distributed to prospective students contain information regarding
the institution’s commitment to diversity, inclusion, academic freedom, and tolerance,
the school should live up to these promises. (Recent example of lawsuits based on
policies: students suing law schools for misrepresenting placement).
C. Freedom of Association
1. Employees: Unionization of private college and university faculty members is currently
barred, based on Supreme Court precedent establishing that these employees are deemed
to be excluded managers. NLRB v. Yeshiva University, 444 U.S. 672 (1980). However,
in May 2012, the National Labor Relations Board (“NLRB”) requested briefs from
interested parties on the question of whether university faculty members seeking to be
represented by a union are employees covered by the NLRA.
2. Students: Unionization of graduate students is also barred, based on NLRB precedent
finding that they are not “employees” under the NLRA. Brown University and
International Union, United Automobile, Aerospace and Agricultural Implement Workers
of America, UAW AFL-CIO, 342 NLRB No. 42 (2004). However, in June 2012, the
NLRB announced it would be reconsidering this issue.
D. Employee Speech Protected by NLRA
1. The NLRA prohibits private employers from, among other things, interfering in
employees’ attempts to engage in concerted activity. These attempts include discussions
among coworkers about the terms and conditions of their employment. Private
institutions must comply with the NLRA – and must be careful not to draft overbroad
policies which would exclude this type of conduct.
III.
Other Mandatory and/or Protected Speech
A. Duty to Report
1. Child abuse
2. Gunshot wounds
3. Check local rules
B. Speech Afforded Federal Whistleblower Protection:
1. False Claims Act: (31 U.S.C. § 3730(h)). Protects any private citizen who reports or
participates in a legal proceeding or investigation related to false claims made by his/her
employer for government payments. Under this Act, an employee or former employee
may not be discharged, demoted, suspended, threatened, harassed, or be the subject of
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2.
any adverse employment action because of the employee’s participation in the
initiation, investigation, or prosecution of his/her employer’s involvement in making a
fraudulent claim for government payments. To establish a prima facie case, an
employee must also establish causation (that the employer knew about the employee’s
participation in the investigation of fraud and the adverse employment action was the
result of the employee’s protected activity). Retaliation is rarely a good idea.
Additional protections???
The presenter wishes to express his gratitude to Martin J. Ricciardi, J.D., L.L.M., Partner, and Monica
Skanes, Associate, at Whiteman Osterman & Hanna LLP, One Commerce Plaza, Albany, New York 12260,
(518) 487-7618, for assistance with the preparation of this presentation.
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