As Fall Semester Begins, Schools Continue to Wrestle with Free Speech Policies

By Zachary Carlton

As a student and a professor, I’ve exercised my First Amendment right to free speech in protests and counter-protests, civil disagreements and heated arguments.

Inside classrooms, in panel discussions and one-on-one with students, I’ve discussed the importance of this right and the ways in which higher education administrators draft policies that are in tension with that right.

In May, students associated with the Bunker Hill Community College chapter of Young Americans for Liberty in Boston learned that lesson on their own.

Protesting the college’s policies on student speech, they went to an open area of the campus where they wouldn’t interfere with foot traffic and distributed pocket-sized copies of the U.S. Constitution.

“We went out there to hand out constitutions to prove that the [college’s policy was] unjust and needed to be changed,” Jeff Ly, president of the Young Americans for Liberty chapter, told me. “I wanted to hand out copies of the constitution on campus because I should be free to do so and I believe that I am, regardless of what this unconstitutional policy states.”

Ly said that shortly after they began distributing constitutions, the campus police ordered them to stop and informed them that what they were doing was against rules established by the administration. The campus police then recorded the names of each student and reported them to administrators.

“Ironically,” Ly said, “the document we were stopped from distributing actually protects our rights to distribute such publications.”

After meeting with several Bunker Hill Community College administrators about the incident, Ly contacted the Alliance Defending Freedom and asked the organization to intervene on behalf of him and his classmates. That organization, along with the Foundation for Individual Rights in Education, sent a letter to the school informing administrators that policies in the student handbook were unconstitutional.

According to the letter:

The college’s policies “act as a prior restraint on free speech, grant administrators unbridled discretion to disfavor speakers due to their viewpoint or due to the perceived controversial nature of their viewpoints, restrict the content of student expression, and infringe students’ First Amendment right of association.”

The letter highlights objectionable policies in the handbook, specifically those that:

(1) require advance permission from the administration before conducting expressive activities;
(2) require administration oversight of content distributed on campus; and
(3) prohibit students at the college from meeting or forming student groups without official recognition from the administration.

Whether a campus policy relating to speech is constitutional can come down to several factors, including:

Public Versus Private | Because a private college or university doesn’t accept public money its policies aren’t subject to the same legal scrutiny as public educational institutions (Click here for more on private college speech).

Time, Place, Manner | Public colleges and universities may place restrictions on speech, but only if those restrictions are limited to the time, place and manner of the speech and not its content.

Ample Alternatives | A public college or university is allowed to restrict speech that would disrupt classes, or the ability of students to navigate the campus, if ample alternatives for that speech are available. So a public college may ban protests from occurring inside a classroom, for example, but only if that protest can take place elsewhere on campus at a reasonable time and location.

Unfortunately, the incident at Bunker Hill Community College is not unique. Even a narrow search of community colleges denying students the right to distribute constitutions yields recent examples. A student at Pierce College in Los Angeles filed a lawsuit against his school for stopping him from distributing Spanish-language versions of the constitution outside of a “free speech zone” without the school’s express permission. Another lawsuit was filed in March by students arrested at Kellogg Community College in Michigan for distributing constitutions on campus.

It should be noted that these breaches of student speech rights are the exception rather than the rule. And fortunately, there are schools that attempt to address policy concerns when confronted with their constitutional implications. Bunker Hill Community College seems to be one of those schools.

Karen Norton, the college’s director of communications, emailed me that “[t]he College takes the concerns raised by the ADF very seriously and is currently reviewing its policies and practices in order to ensure that all students and staff on our campus enjoy the full protections afforded under the 1st Amendment.”

It is my sincerest hope that Norton is true to her word and that ultimately Bunker Hill Community College corrects its policies. It’s crucial for all students, not just those with Young Americans for Liberty, to be able to enjoy their freedom of speech on campus with the same ease I did.

Zachary Carlton is a second-year law student at New England School of Law | Boston. He served as a 2017 summer legal fellow for the New England First Amendment Coalition.

Above photo provided by Flickr user Shawn Clover and used under a CC 2.0 license

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

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Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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