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Would filtering the Internet at public colleges and universities violate the First Amendment?

Unfortunately the answer to this is unclear. So far only one state — Virginia — has passed a law allowing public colleges and universities to filter the Internet.

In 1996, Virginia passed a law that “restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state.”

Access to such material may be allowed if it is part of an “agency approved research project” and permission is granted by a supervisor. The law was challenged by six state university professors on grounds that the law unconstitutionally interfered with their research and teaching.

The case was heard by the full 4th U.S. Circuit Court of Appeals, which in an 8-4 decision, held the statute to be constitutional. The court had to determine if the statute regulated speech made by public employees, in their role as private citizen, on matters of public concern. The critical determination, according to the court, “is whether the speech is made primarily in the [employee’s] role as citizen or primarily in his role as employee.” The court found in its 2000 ruling in Urofsky v. Gilmore, that the speech at issue — “access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties” — was clearly made in the employee’s role as employee. Therefore the statute “does not affect speech by [the professors] in their capacity as private citizens on matters of public concern” and thus “does not infringe the First Amendment rights of state employees.”

The professors in Urofsky had also argued that the statute was unconstitutional because it infringed on their First Amendment right to academic freedom. The 4th Circuit judges rejected this argument, saying that their review of the law lead them to conclude that the right to academic freedom was held by the university and not the individual.

Don't certain kinds of harsh or insensitive speech tend to silence others' free expression, thereby working against the free exchange of ideas?

An offended person’s decision not to speak is hardly a reason to suppress the speech of others. Those who find an idea, epithet, literary work or other form of expression offensive can oppose, counteract and perhaps refute it with further speech — not by banning the speech deemed to be offensive.

As Justice Louis Brandeis said in a famous quote, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

Can't a public college stadium prohibit fan profanity because there are kids in the stands?

Under current First Amendment doctrine, offensiveness cannot be measured from the standpoint of the most sensitive person in the crowd; the level of permissible expression cannot be reduced to what the least-tolerant listener will accept. Nor should it be measured from the standpoint of children in the crowd, because, as the Supreme Court long has insisted, the level of discourse for an adult audience cannot be reduced only to what is fit for children.

May I hand out election-campaign literature on public land?


Why shouldn't public colleges be allowed some say in the type of research done by their professors or the funding sources if a line of inquiry might negatively affect the school?

To allow colleges to restrict a field of research, either by censuring a professor or by limiting funding, would be to suggest that no academic advances should be made in that field. Such an attitude would seem to run contrary to the purpose of institutions of higher education. Where a college blocks a professor’s efforts to research a particular issue, the implication is that the censors fear what might be found.

As government entities, public universities are just as precluded by West Virginia v. Barnette from deciding “what shall be orthodox” as Congress is. That means that although a school administration may question the methodology or classroom performance of a professor, it cannot prohibit a field of inquiry simply because the subject is controversial.

What is academic freedom?

Academic freedom has an institutional and individual component. Academic freedom refers to the right of a university to determine its educational mission free from governmental intervention. This is institutional academic freedom. Academic freedom also refers to the right of an individual professor to teach her or his curriculum without undue interference from university officials. This is individual academic freedom.

The American Association of University Professors in its 1940 Statement of Principles of Academic Freedom and Tenure defined academic freedom as “full freedom in research” and “freedom in the classroom in discussing their subject.” The statement with regard to freedom in the classroom also states that teachers “should be careful not to introduce into their teaching controversial matter which has no relation to their subject.”

Still another aspect of academic freedom refers to the ability of university professors to be able to speak as private citizens without fear of reprisal from their universities or the government. The AAUP’s statement provides: “When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations.”

Is academic freedom limited to professors?

No. The Supreme Court recognized in its 1957 decision Sweezy v. New Hampshire that a university, as an institution of higher learning, has the freedom “to determine for itself on academic grounds” four basic questions: “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

None of these institutional freedoms, however, should be interpreted as limiting the individual freedoms of students or faculty. Public colleges and universities are still prohibited from taking action against professors and students based on their thoughts, opinions or pursuits, which may be unorthodox, so long as their work and expression doesn’t directly damage the university’s academic purpose. Courts have consistently overruled the efforts of public colleges to establish speech codes or otherwise burden free speech and expression on their campuses.

Some educational administrators have sought to protect students from various forms of sexual and racial harassment by invoking “academic freedom.” Their argument is that no student can be truly free in his or her scholarly efforts where there is the shadow of racism, sexism or heterosexism.

A number of schools have implemented plans to prevent such attitudes from affecting students, but the result has been an uneasy tension between the rights of students to have a learning environment free of hostility and the ability of professors to engage their classes freely without having their own expression chilled by fears of mistaken intentions. This is a contentious issue and one that seems unlikely to find a simple or quick solution.

As long as they don't discriminate against certain speakers or messages, what's wrong with campus free-speech zones?

First Amendment advocates say an entire campus should be a free-speech zone because the purpose of a public college or university is to allow and to explore all points of view. Free-speech supporters thus express suspicion that designating zones is a way of limiting and discouraging free speech.

What about independent student newspapers or fliers? Can schools control their distribution?

Yes and no. Public universities may not completely prevent students from independently printing and distributing written materials on their campus, but they may impose reasonable time, place, and manner restrictions on their distribution. For example, a school may establish certain places on campus as the proper locations for those wishing to pass out written materials, or they may prohibit distribution at times where it could reasonably block the passage of students to and from classes. But the open spaces of a college campus are generally presumed to be an open forum for the purpose of student expression, including written expression.

Are college journalists entitled to all the same liberties as professional journalists?

In almost all situations, yes. Some states may not afford student journalists the right to protect the identity of their sources against a court’s subpoena, but almost every other privilege of the professional press may not legally be denied to members of the student press.

How independent are public college/university-operated electronic media?

It largely depends on who has been given the responsibility to maintain or oversee the media. Where universities have given control of television studios, radio stations or Internet sites to student supervisors, they have limited their right to interfere with that supervision, even where the supervisor allows material of which the administration disapproves. But with the law still somewhat unsettled regarding public college print media, it is unclear what would happen if a public college or university decided to censor the campus electronic media or to discipline students responsible for disseminating objectionable material.

What if other students try to prevent distribution of student publications that they find offensive?

Many college campuses continue to deal with the problem of students' confiscating newspapers to prevent the circulation of stories or ideas that they find offensive. Every year cases are reported where entire runs of a publication are stolen, depriving the campus of the opportunity to even consider what was published. Unfortunately, very few of these instances have resulted in meaningful punishment of the offenders.

The problem in punishing those who steal papers is twofold. From the legal perspective, it is difficult to successfully prosecute the perpetrators for theft, as the newspapers are distributed free to whoever chooses to pick one (or 1,000) up. Prosecutors in a handful of cases have used charges of criminal mischief and vandalism, in addition to the more conventional theft charges, to secure punishment for those responsible for stealing papers. But the vast majority of such incidents go unheard by courts of law. Some universities have been accused of downplaying the importance of mass newspaper thefts out of fear of further offending various groups.

Are public colleges permitted to put any restrictions on the student groups that they will recognize? What if activities advocated by a group are illegal?

The Supreme Court spoke to this issue in Brandenburg v. Ohio (1969), in which it held that even those statements (or student groups, in this case) that advocate violation of the law are protected speech under the First Amendment unless they threaten “imminent lawless action.” This principle was tested recently by the 11th U.S. Circuit Court of Appeals in Gay Lesbian Bisexual Alliance v. Pryor, where the state of Alabama passed a statute that prevented state universities from recognizing or distributing funds to student groups that promoted lifestyles prohibited under the state’s sodomy laws. The court found that the GLBA did not promote “imminent lawless action,” and that any statute intended to restrict the group’s otherwise-protected advocacy of a nontraditional lifestyle was inherently unconstitutional.

Can a college student invoke his or her religious beliefs to avoid engaging in an objectionable type of artistic expression?

Suppose a student is taking a drawing class. Part of it involves sketching a nude human body. If a student has a religious objection to observing or drawing unclothed models, he or she might ask to be exempted from that section of the class without damage to the course grade. Such an exemption may or may not be granted.

It stands to reason, under a doctrine established by the U.S. Supreme Court in its 1943 decision West Virginia v. Barnette, that no one may be compelled by a government actor to do something that will violate their conscience. Accordingly, it would seem that the same could be said for students who find religious or moral objections to certain practices normally required in a course of study — that they should be allowed to take on comparable tasks, modified to meet the requirements of their worldview.

A Mormon drama student at the University of Utah recently objected to “taking the Lord’s name in vain” and using “the f-word.” When she asked that she be allowed to change the words in class exercises and plays to which she was assigned, she was informed that her grade would suffer if she did so. In the resulting court case, the federal district court found that she could not exempt herself from the requirements of her studies and that if she desired to avoid those requirements, she had the option of choosing another major. The case has been appealed.

A college professor makes references to materials of a sexual nature during his lecture. Could he be disciplined for such comments or is this protected speech?

It likely depends on whether the speech in question is germane to the subject matter and advances a legitimate educational objective. If the speech is totally unrelated to the subject matter, then an academic freedom claim will fail. On the other hand, if the speech relates to a valid educational objective and is related to the subject matter, the professor could make a defense based on academic freedom.

It also depends on the university’s policy with regard to sexual harassment. For instance, one federal appeals court ruled in 1996 that a university could not discipline a professor who used vulgar language and talked about sexual topics in his English class because the university’s policy was too vague and had never been applied to the professor’s controversial teaching style. The court wrote in Cohen v. San Bernardino Valley College that “the Policy is simply too vague … in this case.” The court noted later in its analysis that “the legal issues raised in this case are not readily discernible and the appropriate conclusion is not so clear.”

Other relevant factors would be: the frequency and severity of the sexual comments; whether the comments targeted specific individuals or were of a more general nature; whether the professor had notice that his or her teaching methods crossed the line; and whether prior complaints had been filed and were made known to the professor.

Can people who oppose a speaker's message use their 'freedom of speech' to drown out the offending words?

This is called a “heckler’s veto.” The problem with it is that, far from advancing understanding, it inhibits it. Freedom of speech was guaranteed in the First Amendment so that a full range of ideas would be available on matters of public interest. The Supreme Court's interpretation of the First Amendment as it pertains to public college campuses over the past 80-90 years is derived in part from J.S. Mill’s essay, “On Liberty,” in which he asserted that:

“… the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Students are not allowed to drown out the lectures of a professor in the classroom without disciplinary action because doing so disrupts the school’s academic purpose. Guest speakers are allowed on campus in order to offer different and broader perspectives, thereby addressing the school’s purpose. So student speech that would drown out a controversial guest therefore can be prohibited.

However, institutions ideally will not simply silence students wishing to protest against a campus speaker. They may restrict student protesters to an appropriate forum, thus allowing both exercises of free speech to occur.

What exactly is 'directory information'?

Directory information, the information that Department of Education regulations have said may be released to the public without the student’s prior approval, includes (but is not limited to) items such as the name, address, phone number, date and location of birth, field of study, degrees and awards received, and the height and weight of athletic team members. Schools must also give students a chance to restrict public access to even these facts if the student wishes. The difference between this information and other school records is that “directory information” is assumed to be available to the public until the student chooses otherwise. The release of any other school records must be explicitly approved by either the student or their parents.

Why would the news media want or need personal information about individual students or incidents?

Particularly in situations involving illegal or unethical behavior, the press takes seriously its responsibility to keep the public informed. People want and need to know what is happening on public campuses, especially if they have children attending school or thinking of doing so. As with any important story, reporters will want to learn as much about the people involved or suspected of being involved so that they can assemble the uncontested facts into an accurate picture of the situation. This goal would be served by having access to some of the records protected by FERPA because the information would help the reporters to understand that situation and the individuals who might be involved. Without access to the government-controlled educational records, pieces are left out of the puzzle.

May a student sue a private university for damages under the Family Educational Rights and Privacy Act of 1974 (FERPA)?

This question was the issue in the Supreme Court case Gonzaga University v. Doe, 536 U.S. 273 (2002). In the 7-2 ruling, Chief Justice William H. Rehnquist wrote for the majority that a student may not sue a private university for damages under any provision of FERPA, the Family Educational Rights and Privacy Act.

Gonzaga University v. Doe involved a student, John Doe, who intended to apply to become a teacher upon graduating from Gonzaga. In order to become a public school teacher in Washington state, an individual must file an affidavit of good moral character from his or her graduating university. But a Gonzaga teacher-certification specialist overheard another student describing sexual misconduct by Doe, the student who became the plaintiff in this lawsuit. The specialist contacted the Washington state agency responsible for teacher certification, identified Doe and discussed the allegations of sexual misconduct. Subsequently, Doe, who had no knowledge of the investigation at the time, was denied the certification affidavit. Doe sued Gonzaga University on the grounds of a FERPA violation. The trial court awarded Doe both compensatory and punitive damages. On appeal, the Washington Court of Appeals held that FERPA does not create enforceable rights under 42 U.S.C. §1983. The Washington Supreme Court expanded on the appeals court's ruling, reasoning that although FERPA does not give rise to private causes of action, its non-disclosure provision does create an enforceable right under 42 U.S.C. §1983. The U.S. Supreme Court reversed the decision of the Washington Supreme Court and held that students and parents may not sue for damages under FERPA because FERPA’s nondisclosure provisions “contain no rights-creating language … they serve primarily to direct the Secretary of Education’s distribution of public funds to educate institutions.”

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Last system update: Friday, July 25, 2008 | 19:10:46
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