Lee E. Bird, Vice President for Student Affairs, Oklahoma State University
Mary Beth Mackin, Dean of Students, University of Wisconsin-Whitewater
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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.
2
It can hardly be argued that
either students or teachers
shed their constitutional
rights to freedom of speech
or expression at the
schoolhouse gate.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503
(1969)
3
“The mere dissemination of
ideas—no matter how
offensive to good taste—on a
state university campus may
not be shut off in the name
alone of ‘conventions of
decency.”
- Papish v. Board of Curators of the Univ. of Missouri, 410 U.S. 667 (1973)
4
Public/Private Distinctions
• United States Constitutional law applies only to
public colleges and universities.
• Constitutional provisions or state statute may
apply to private colleges (e.g. Leonard Law in
California).
• Internal rules and statements (typically printed in
campus literature) asserting a strong First
Amendment/Academic freedom culture, may be
viewed as contractually binding.
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Forum Analysis: public forum and
designated public forum
Traditional Public Forum
Public streets
Sidewalks
Parks
Newspaper
Designated Public Forum
Institutionally designated
public areas
Main campus walkways
Green spaces
“Free speech” zones
Time, Place and Manner
Restrictions
Limitations subject to strict
scrutiny
Institutions must be able to
articulate a compelling
interest in limiting speech
Must be content neutral
Limitations must be
narrowly tailored to serve a
significant government
interest and
Leave open ample
alternatives for expression
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Limited Public Forum
Locations that the
institution has opened
for expressive activity
with a content-neutral
limited purpose.
Time, place, manner
restrictions
Limitations must be governed
by a written use policy.
Regulations must be
reasonable and viewpoint
neutral.
Policies limiting expression
must be narrowly tailored.
Institutions may give priority
for space to college groups
over non-college groups
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Non-public forum
Campus locations not open for
public expression by either
tradition or designation
Classrooms
Campus offices
Residence hall lobby
Time/Place/Manner Restrictions
May limit any expression not
consistent with the purpose of the
forum
Limitations must be rationally
related to the purpose, nature and
specific circumstances of the
forum
Schools may make distinctions in
limitation based on subject matter
or speaker identity as long as the
regulation is reasonable
Regulations must be viewpoint
neutral
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Perceived defamation issues
Cyberbullying
Cyberstalking
Threatening others online
Posting the personal information of others online
Hurtful internet polling
Posting embarrassing or hurtful images online
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Threat
Incitement of Imminent Lawless
Action
Racial and Sexual Harassment
Fighting Words
Obscenity
Defamation
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True Threat
“Intimidation in the constitutionally
proscribable sense of the word is a
type of true threat, where a speaker
directs a threat to a person or group
of persons with the intent of placing
the victim in fear of bodily harm or
death.”
Virginia v. Black, (01-1107) 538 U.S. 343, (2003)
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The Incitement Test (Brandenburg)
The constitutional guarantees of free speech
and free press do not permit a State to forbid
or proscribe advocacy of the use of force or
of law violation except where such
advocacy is directed to inciting or
producing imminent lawless action and is
likely to incite or produce such action.
Brandenburg v. Ohio, 395 U.S. 444,
(1969)
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“ Sexual harassment is unwelcome conduct of a
sexual nature. Sexual harassment can include
unwelcome sexual advances, requests for sexual
favors and other verbal, nonverbal or physical
conduct of a sexual nature that is sufficiently
severe or pervasive to deny or limit a student’s
ability to participate in or receive benefits and
services or opportunities in the school’s
program.”
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“Unwelcome speech or conduct based on
a person’s race, color, or national origin
that is so serious (i.e. severe, persistent,
or pervasive) as to deny or limit a
student’s ability to participate in or
benefit from the educational program….”
14
“Fighting Words”
Chaplinsky v. New Hampshire (1942)
… words which by their very utterance
inflict injury or tend to incite an
immediate breach of the peace…
Not upheld by the Supreme Court since 1942
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(a) whether "the average person, applying contemporary
community standards" would find that the work, taken as a
whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law, and
(c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value
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“People don’t appreciate how much the First
Amendment protects not only political ideological
speech, but also personal nastiness and chatter
(E. Volokh).”
“The murkiness of this area of law and educational
policy has led to legal challenges across the
country over school officials’ restriction on
discipline of student speech (V. Kim).”
17
K-12 students considered children- not adults
K-12 education is compulsory not voluntary
Courts allow K-12 schools to set higher
expectations for expression
Courts allow greater administrative oversight of
pedagogical issues in K-12
Distinctions made for on-campus and offcampus behavior
18
“Tinker standard”- substantial disruption test
 Doniger v. Niehoff (2008)
 Layshock v. Hermitage School District (2011)
 Kowalski v. Berkeley County Schools (2011)
True threat standard
 J.S. v. Bethlehem Area School District (2002)
 Murakowski v. University of Delaware (2008)
 D.J.M. v. Hannibal Public School District #60 (2011)
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“Fraser standard” ruling lewd language in
K-12 setting not permitted
“Hazelwood standard” allowing greater
administrative judgment (censorship) in the
selection of age appropriate newspaper article
topics in the K-12 setting
The courts in Tatro and Murakowski ultimately
relied on adherence to appropriately crafted
university rules
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Inconsistency within Circuit rulings and
inconsistent rulings between circuits
typically serves as an invitation to the
Supreme Court to intervene and provide
guidance. To date the Supreme Court has
rejected student internet cases.
21
Requires an institution to include in its annual security report a statement of
policy regarding harassment that includes:
1. a prohibition of harassment of students by other students, faculty, and staff;
2. a description of its programs to prevent harassment;
3. a description of the procedures that students should follow if harassment
occurs; and
4.
a description of the procedures it will follow once an incident of harassment
has been reported.
Definition of "harassment“ includes certain conduct undertaken through technological
means that limits a student's ability to benefit from the IHE's programs.
Definition also includes conduct that creates a hostile or abusive educational environment
at the school.
Removes “objectively offensive” from the definition of harassment commonly used in peerto-peer harassment
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