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1992) (“It is held generally in the United States that the ‘basic legal relation between a student and private university or college is contractual in nature. 1980) (holding that “when a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.”). If a private college clearly does not promise free speech, and the college makes this known publicly and consistently, entering students have given informed consent and have voluntarily chosen to limit their own rights-in much the same way students entering military academies or theological seminaries understand that they are relinquishing many rights they would enjoy at a state college. This basic definition is necessary because colleges rarely label such restrictions as “speech codes” in their handbooks. For example, “speech zone” policies like the one maintained by Valdosta State University which limited the free speech activities of 11,000 students to less than 1% of a 168-acre campus; or “student rights and obligations” policies like Pennsylvania State University’s “Penn State Principles,” which prohibit students from violating others’ “rights” by “taunting, ridiculing, [or] insulting” other students. Secondly, the court held that the policy in fact prohibited more than just fighting words, rendering it unconstitutionally overbroad.The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.'”); , 735 N. 2000) (recognizing contractual relationship between student and university, and employing “‘the standard of reasonable expectation — what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.'”) (internal quotation omitted); , 49 N. In some cases, however, courts have ruled that student handbooks and other related materials are non-binding or need not be precisely followed. (Both of these policies were voluntarily reformed by the respective institutions after letters from FIRE.) Other examples include computer use policies like the one at the University of Alabama – Huntsville, which prohibits “[a]ny inappropriate e-mail,” including “unofficial, unsolicited e-mail,” or “diversity” policies like the one at Texas Southern University, which prohibits “intentional mental… 1991): A federal district court ruled unconstitutional a policy prohibiting speech that: “Demean[s] the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; [and]… This decision is also noteworthy because the court relied on California’s “Leonard Law,” which provides students attending private institutions in California with the same free speech rights as those attending public institutions.A student religious group that had previously been permitted to use the facilities sued the school after being informed of the change in policy, asserting that their First Amendment rights to religious free exercise and free speech were being violated.The Court’s decision ensured greater access to public facilities by religious organizations, and held that the state was not assumed to be in support of all messages that were communicated in their facilities.
Noting that a “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students,” the Third Circuit found UVI’s policy forbidding “offensive” or “unauthorized” signs to be unconstitutionally overbroad.
In November 2007, Judge Wayne Brazil issued a preliminary injunction barring SFSU and other schools in the California State University system from enforcing several challenged policies, including a requirement that students “be civil to one another” and act in accordance with SFSU’s “goals, principles, and policies.” Judge Brazil also limited the CSU system’s ability to enforce a policy prohibiting “intimidation” and “harassment,” holding that the policy could only be applied to conduct that “reasonably is concluded to threaten or endanger the health or safety of any other person.” was a policy defining sexual harassment to include “expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . As a strongly-worded federal circuit court opinion, , a federal district court found restrictions on symbolic speech on campus maintained by Tarrant County College (TCC) to be unconstitutional.
The court found that TCC’s reliance on a policy prohibiting “disruptive activities” to restrict students from holding an “empty holster” protest violated the First Amendment.
harm.” The most common type of speech code, however, is absurdly overbroad “harassment policies.” For example, Eastern Michigan University defines sexual harassment as including “inappropriate sexual or gender-based activities, comments or gestures.” The University of Texas – Austin prohibits “sexually oriented conversations [or] comments” and “the use of language or the telling of jokes or anecdotes of a sexual nature…even if such conduct is not objected to by those present.” Jackson State University’s harassment policy provides, in relevant part, that “The scope of any form of harassment includes language to physical acts which degrades, insult, taunt, or challenges another person by any means of communication, verbal, so as to provoke a violent response, communication of threat, defamation of character, use of profanity, verbal assaults, derogatory comments or remarks, sexist remarks, racists remarks or any behavior that places another member of the University community in a state of fear or anxiety.” While some of these policies are enacted out of a presumably well-intentioned-if paternalistic-impulse to “protect” students from “harm,” they are entirely incompatible with freedom of expression and the daily reality of communication in our modern liberal democracy. [c]reate[s] an intimidating, hostile or demeaning environment for education, university related work, or other university-authorized activity.” In striking down the code, the court ruled that “the suppression of speech, even where the speech’s content appears to have little value and great costs, amounts to governmental thought control.” was the first speech code case decided by a federal appellate court. , a federal district court declared a sexual harassment policy to be both overbroad and vague for prohibiting, in pertinent part, expression which “unreasonably affects your status and well-being by creating an intimidating, hostile, or offensive work or academic environment.” In particular, the policy “fail[ed] to draw the necessary boundary between the subjectively measured offensive conduct and objectively measured harassing conduct,”giving one “the impression that speech of a sexual nature that is merely offensive would constitute sexual harassment because it makes the individual hearer uncomfortable to the point of affecting her status and well-being.” This made the policy clearly capable of reaching protected speech and therefore overbroad.
When enacted at public universities, speech codes like the ones described above have been found unconstitutional by federal and state courts in decisions dating back over two decades. 1989): A federal district court found the speech provisions of the University of Michigan’s harassment code to be unconstitutionally overbroad. The challenged speech code was a discriminatory harassment policy which defined racial and ethnic harassment as “any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by . The court also found that the policy “fail[ed] to give adequate notice regarding precisely what conduct is prohibited” and “delegate[d] enforcement responsibility with inadequate guidance,” rendering it unconstitutionally vague. 2007) In October 2006, the San Francisco State University (SFSU) College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags.
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The Court stated: [T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.