University Regulation of Student Speech: In Search of a Unified Mode of Analysis

By Miller, Patrick | Michigan Law Review, May 2018 | Go to article overview

University Regulation of Student Speech: In Search of a Unified Mode of Analysis


Miller, Patrick, Michigan Law Review


INTRODUCTION

The year 2017 was a trying time for universities as increasingly hateful demonstrations spread across the country. In an effort to maintain a welcoming and inclusive environment on their campuses, many public universities and colleges employ restrictions on offensive speech.1 These restrictions include university speech codes and accompanying disciplinary actions. The chilling effects of such policies can have a profound effect on student speech, and many courts have invalidated campus speech codes under the First Amendment.2 Yet universities continue to develop, modify, and enforce such policies in order to remove speech deemed offensive from campus discourse.3

Judicial review of university regulation of offensive student speech is particularly complicated because of the varying modes of First Amendment analysis used by courts. While some courts have adopted a public forum analysis, others use only traditional categorical analysis, and still others use an education-specific approach. Recent scholarship has also highlighted a divergence in opinions about the constitutional boundaries of student speech regulation. While some scholars argue that universities may legally regulate a good deal of speech,4 others contend that the power of universities to regulate student speech is quite constrained,5 and still others are unable to come to a conclusion on what the law is with regard to harassing speech.6

This Note argues that many university policies regarding offensive and harassing speech unconstitutionally infringe on student speech7 and thus require careful judicial scrutiny. Such scrutiny is difficult, however, because of the conflict between the competing modes of analysis. In order to simplify and encourage searching judicial review of university speech policies, this Note argues that the Third Circuit's approach-which adapts the Supreme Court's education-specific speech cases8 to the university setting-should be adopted and modified to better reflect First Amendment values and provide clear guidance to judges, university administrators, and students. When courts are reviewing university regulation of student speech, the university action should be invalidated unless it is narrowly tailored to prohibit only exclusionary speech and to protect core moral and political speech. In practice, this means that in order to punish a student for speech, the school would need to show that the speech created a hostile environment or substantially deprived the target of the speech of access to opportunities and that it was not an expression of moral or political conviction.9

Part I examines the current treatment of harassing and offensive speech on university campuses and concludes that judicial review is necessary because many universities are unconstitutionally restrictive in dealing with offensive speech. Part II evaluates the primary modes of analysis used by courts in evaluating university regulation of offensive student speech. Part III argues that the Third Circuit's approach best protects the First Amendment rights of students and suggests modifications to that approach to better protect speech.

I. HARASSING SPEECH AND THE UNIVERSITY

Speech is given a "transcendent value" in American society,10 and the "vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."11 When speech rights are in tension with nonconstitutional interests, the First Amendment gives precedence to speech.12 In part, this precedence stems from the recognition that speech rights respect individual autonomy, promote the robust debate a democracy requires, and foster a tolerant society.13 Many of the ideas that Americans take for granted today were once considered dangerous and subversive and were targeted for censorship.14 The vigorous search for truth requires that all views, especially unpopular views, get a fair hearing.15 But to say that speech holds a revered place in American society is not to minimize the harm that may come from allowing some speech that is highly offensive to go unpunished. …

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