Well before any of us were born, educational institutions were a hotbed for debate and discourse. The very first student protest in the United States, the Great Butter Rebellion, was recorded in 1766. This riotous event essentially laid the groundwork for the powerful student activism and expression that would test the limits of the First Amendment and freedom of speech protections on our nation’s campuses for centuries to come.
In recent decades, campus protests have taken on issues of much greater societal importance than rancid butter, including gun control; sexual assault awareness; climate change action; and diversity, equity, and inclusion initiatives. In numerous cases, student-led activism has led to significant change, not just within academic institutions but also in society at large.
Over the past year, we have seen yet another surge of student protests, demonstrations, and encampments on campuses. This time, these forms of expression are in response to the conflict in the Middle East. Unfortunately, several of these events have resulted in widespread reports of hate speech and harassment (both on campus and online), assault, vandalism, and more. In multiple cases, these intense situations have led to students and employees reporting that their school has become a hostile environment, the educational experience is being interfered with, and that they feel unsafe physically and emotionally. Since October 2023, well over 100 associated complaints have been filed against educational institutions with the Department of Education’s Office for Civil Rights (OCR).
These nationwide events are surfacing long-standing free speech questions and quandaries, like “Should schools allow students, professors, and invited speakers to say whatever they want?,” “Should schools put new limits and restrictions on campus expression?,” and “Who gets to decide what is an acceptable and unacceptable exchange of ideas and dialogue?”
Regardless of the level of activism on its campus, every school would be wise to take a magnifying glass to its policy on open discourse and free expression. Whether you lead a public institution, required to adhere to First Amendment principles, or a private institution, with no such obligation and thus somewhat more latitude, we urge you, first and foremost, to work closely with in-house or external legal counsel to understand your school’s specific legal obligations at the federal, state, and local level.
While the Fred C. Church Education Practice does not provide legal advice, we do offer assistance in identifying and assessing institutional liability exposures and helping you develop a plan to mitigate them. In this vein, our team has collaborated with several of our higher-education partners to uncover key liability considerations and risk management best practices for campus speech policies. Following are some of the crucial insights and resources we have gathered to date:
1. Keep a Record of All the Places Where Your Institution’s Policy on Freedom of Speech and Expression Exists
From your student handbook to your Nondiscrimination and Equal Employment Opportunity Policy and your school website, it’s important to know where your institution has published its free speech policy so it can be universally reviewed, revised, or referenced for a legal case if necessary.
2. Be Aware of How the Phrasing of Your Policy Might Be Interpreted by a Court of Law
Once you’ve done the due diligence of documenting where your institution’s policy appears, you and your legal experts should carefully consider the language used in it. For example, it should raise a red flag if the statement includes definitive promises of protection under the First Amendment or if a policy could be construed as an enforceable contractual right.
3. Clearly State Time, Place, and Manner Limits in Your Free Speech Policy
In addition to expressing your institution’s core beliefs on freedom of expression, your policy should detail all your school’s restrictions related to the time, place, and manner in which speech is allowed to occur (e.g., where encampments can be located, where flyers can be handed out, where posters can be hung, etc.). However, it’s important for these rules to be reasonable, to apply uniformly and not discriminate against certain kinds of speech or messages, and to provide alternative avenues for expression to take place.
4. Spell Out Your Institution’s Definition of Hate Speech
Even if your school is subject to the First Amendment, which protects, among other types of expression, speech that might offend particular groups, providing a definition of hate speech in your policy educates your community about the speech that is (and is not) allowed. It’s important to be aware that the Office for Civil Rights has its own broad definition of what may constitute hate speech and discrimination. The agency recently updated its “Fact Sheet: Harassment based on Race, Color, or National Origin on School Campuses,” which provides educational institutions with essential guidelines on what OCR considers to be harassing conduct, when that conduct violates Title VI, how school officials can know when a student may be experiencing a hostile environment, what they must do to address the situation, and what might prompt OCR to open an investigation based on a complaint.
5. Regularly Benchmark What Peer Schools Are Doing and Saying
For example, the University of Pennsylvania’s recent clarification of its standards and procedures for demonstrations, protests, rallies, guest speakers, and more may be a valuable resource and comparative tool for any school in the process of formulating or clarifying its own free speech policy and event guidelines. In addition, many highly regarded academic institutions have created model free speech policy statements that could serve as resources, including the University of Chicago’s “Chicago Statement,” which has been adopted or slightly adapted by over 110 colleges and universities, and the AAUP’s Statement of Principles on Academic Freedom and Tenure, which has been endorsed by more than 250 scholarly and education groups.
6. Involve Your Campus Community in Freedom of Speech Policy Discussions
Gaining 100% acceptance of any policy is virtually impossible. However, the schools that we’ve seen have the most success implementing and gaining compliance with their campus speech policy are those that have crafted their standards with input from every constituency, including students, faculty, administration, and staff. You may even want to consider creating an education and response team that consists of a diverse group of community members trained to monitor the campus climate related to bias incidents and hate crimes and advise school leaders on opportunities to raise awareness and improve protocols.
A Risk Management Partner That Works Hand in Hand with You to Help Make Your School a Safer Learning and Working Environment
As the current campus speech debate broils on and we deal with the aftermath of an exceptionally polarizing presidential election, tensions on campuses may continue to rise. We understand how these situations put school leaders in a precarious position. They are often being criticized from both sides of this issue—either they’re faulted for not providing adequate protection for freedom of expression or they’re accused of not providing adequate protection for their community members and those constituents’ educational experience. Ultimately, we believe that having a well-thought-out and legally vetted campus speech policy can help facilitate open dialogue and protect free speech while also safeguarding members of your school community from hate rhetoric, harassment, and a hostile environment.
We would like to be of assistance as you strive to provide a safe and welcoming campus where all students, faculty, and staff can learn and work. If you need a sounding board for a policy or procedure you’re revising or you want to hear how other schools are navigating a particular risk management issue, including campus speech, our team would be happy to provide you with insights, tools, and resources. Please reach out to us for a consultation today.
