Rather than anticipating an issue or proactivey addressing it, college and university administrators often find themselves in the position of reacting to recent laws or court decisions. This paper examines an issue ripe for proactive thought; an issue not yet directly considered in court cases: free speech and the student employee. In the development of First Amendment free speech jurisprudence on public college campuses, which cases and legal theories apply depends on whether the person claiming free speech violations is an employee or a student. A question not yet answered by the United States Supreme Court as it relates to the public higher education setting is: what if the person is both? Further, which standards apply and what are the differences in those standards? Although arguably addressed in the K-12 setting and in the private sector, but yet somewhat hypothetical for public colleges and universities, as student activism and campus student employment increases, the question is an important one for which to seek answers for the student affairs administrator. This paper reviews the legal basis for First Amendment free speech and then presents some practical ways to approach studenti employee speech.
Within the constitutional area of First Amendment free speech, as the rules developed in case law have been appUed in situations during the past few decades, variations to the seemingly estabUshed rules have arisen. One such area involves student free speech when the student is also an employee of a pubUc institution. Recent court cases have aUowed government, when acting as employer, greater latitude in squelching their employee's speech. Although restrictions in employee speech apply in the private sector as well, given that private employers may create reasonable rules and poUcies in this area for their employees, the primary focus here is on student employees in a public environment.
This paper first examines the case history surrounding free speech for both students and public employees and then considers the most recent cases that have changed some guidelines. Finally, the paper explores some possible difficulties faced when a student also is an employee and presents some guidelines for dealing with such incidences.
The concept that students at public institutions have a constitutional right to free speech first surfaced with Tinker v. Des Moines Independent School District (1969). In Tinker, a few high school students joined their parents' protest of the Vietnam War by wearing black armbands to school. The adniinistration became aware of the impending protest and passed a rule prohibiting the wearing of black armbands. The administration men suspended the students until they returned to school without the armbands. In addressing this case, the Supreme Court first held that students do have constitutional rights, even while at school. As Justice Fortas stated in the majority opinion, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (p. 506). This same rationale was extended to the college campus in Healy v. fames (1972).
In that case, the president of Central Connecticut State College denied official recognition of a chapter of Students for a Democratic Society. The denial was based on the organization's condoning of violent and disruptive activities. The Supreme Court viewed this denial of recognition based on the viewpoints or expressions of this organization, which the court held was unconstitutional. This rationale later was extended by the Supreme Court in a battle between free speech and religion.
In Rosenberger v. Visitors and Curators (1995), the University of Virginia had a policy that prevented religious student groups from receiving funds from the mandatory student fee. When one of those groups filed suit, the Supreme Court eventually held that the university could not discriminate between student groups based on the content of the group's speech. …