THE PROBLEMS WITH THE SOLUTIONS: EXAMINING THE RESPONSE FROM UNIVERSITIES, PRESIDENT TRUMP, AND STATE LEGISLATURES TO CAMPUS FREE SPEECH ISSUES.

• Author: Chavez, Katarina I.

INTRODUCTION

The constitutional right to free speech and expression is a protection that directly affects the progress and advancement of the American free society. (1) Concurring with this ideal, Justice Brandeis in Whitney v. California said, "[i]f 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." (2) Additionally, Justice Cardozo described the freedom of thought and speech as "the matrix, the indispensable condition, of nearly every other form of freedom." (3) Safeguarding this protection encourages citizens to voice and debate their political and social ideas without the fear of censorship, ensuring a pursuit for the truth by the people. (4) Nevertheless, the Supreme Court has established that free speech is not an absolute right in certain circumstances, (5) even on educational campuses. (6)

Despite the occurrence of several free speech controversies on university campuses in the last decade, (7) there is still ongoing debate as to whether a campus free speech crisis exists at all. (8) Some of this skepticism comes from the notion that university speech restrictions are rare. (9) Others believe that right wing activists only use the crisis narrative to push their own values. (10) However, the current efforts taken by institutions like Speech First, Foundation for Individual Rights in Education ("FIRE"), and Alliance Defending Freedom ("ADF") suggest that there is a constitutional freedom in need of advocacy. (11)

In early 2018, the legal organization Speech First was founded to specifically support aggrieved students in their First Amendment lawsuits against their universities. (12) In 2018, Speech First filed a complaint against the University of Michigan arguing that the school's policy prohibiting harassment and bullying on campus too broadly defined "harassment" and "bullying." (13) Speech First's anonymous student clients argued that the overbroad policy essentially chills their right to free speech, because they "feel that they cannot openly and vigorously debate and discuss a wide array of often-controversial topics without running afoul of the University's harassment and bullying policies." (14) The university established a Bias Response Team ("BRT") which is an online resource where students can file a report if they feel affected by "incidents of bias." (15) A bias incident involves misconduct of the kind that "stems from fear, misunderstanding, hatred, and stereotypes [that] may be intentional or unintentional." (16) If the deans reviewing the BRT complaints think the incident violates the university's Statement of Student Rights and Responsibilities, referrals may be made to the police, the Office of Student Conflict Resolution, or a school counseling service. (17)

Ultimately, the Sixth Circuit Court of Appeals found that the district court erred in holding that Speech First's challenges were moot. (18) While it did not make an ultimate determination on Speech First's likelihood of success on the merits, (19) the Sixth Circuit did conclude that the BRT's ability to make conduct referrals (though they may not result in disciplinary action) objectively chills speech. (20) The university settled thereafter, and agreed to revise its definitional terms, abolish the BRT, and reserve the right for Speech First to sue again should the BRT replacement program chill student speech. (21)

Since then, Speech First has instituted other lawsuits against Iowa State University, the University of Texas, and the University of Illinois. (22) Those lawsuits attack the constitutionality of the universities' speech codes, campus bias response systems, and other policies that misalign with the protections of free speech. (23) Two of those lawsuits are still underway, but the suit against Iowa State settled in March 2020. (24) Their existence suggests that there are still at least unresolved questions, if not a crisis, concerning free speech on campuses today. (25)

In its 2020 Spotlight report, FIRE concluded that although the percentage of colleges with overly restrictive speech policies has declined, (26) only about 10.6% of the surveyed schools have written policies that "do not pose a serious threat to free speech." (27) The work of organizations such as FIRE and Speech First prove the reality of persistent affronts to student free speech rights on college campuses today.

The purpose of this note is not only to validate that student speech rights are still threatened, but to examine the effectiveness of policies and laws put in place to protect First Amendment rights on college campuses. Part I of this note will examine frequently cited Supreme Court decisions as a background for understanding the general allowances and limits of free speech in higher education and secondary school settings. Part II will separately discuss the effectiveness of speech code policies, President Trump's Executive order, and state enacted legislation as practical methods of encouraging free student speech and inquiry. After assessing the efficacy of these methods, this note contends that the best avenue for preserving free speech on American campuses is to encourage states to enact campus free speech laws.

1. CASE LAW BACKGROUND

   1. Tinker and the General Campus Free Speech Framework

      The imposition of limitations on free speech within American public education is not a recent legal issue. In fact, the rise of student free speech controversies began surfacing in the late sixties with the landmark case, Tinker v. Des Moines Independent Community School District. (28) In that case, a group of high school students were inspired to protest against the political turmoil brought by the Vietnam War. (29) They publicized their opposition to the war by wearing black armbands to school, and were suspended for violating the school's policy that disallowed wearing armbands in "opposition to this Nation's part in the conflagration in Vietnam." (30) The Supreme Court ultimately found that wearing black armbands to school in protest of the Vietnam War is protected speech. (31) Subsequently, the Court prescribed a new standard which said that actions which "materially and substantially interfere" (32) with "appropriate discipline in the operation of the school" or "inva[de]... the rights of other[]" students are not protected speech. (33) However, symbolic expressions of protest, such as wearing black armbands, were not subject to censorship since they did not cause substantial disruption to "school activities nor sought to intrude in the school affairs or the lives of others." (34)

      Although Tinker took place in a public secondary school, the Supreme Court still references it in college speech-related cases because it sets the framework for student free speech cases. (35) Tinker is capable of such a broad application because of the underlying principle it stands for:

      In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. (36) After Tinker, the student free speech framework grew from cases like Bethel School District v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick. (37) In Bethel, the Supreme Court upheld the school's policy prohibiting a student's lewd sexual innuendos at a school assembly because the language did not sufficiently relate to the "'fundamental values' of public school education." (38) This case did not strictly apply Tinker; rather, it gave school administrators discretion to reprimand students whose "offensively lewd and indecent speech" (39) inadvertently "disrupt[s] the school's educational mission." (40) This outcome is directly contrary to Papish v. Board of Curators of the University of Missouri, where the Supreme Court found that a university student's political cartoon and explicit headline story in the campus newspaper was neither constitutionally obscene, nor without constitutional protection. (41)

      Hazelwood carved its own exception to Tinker, holding that when a school acts as a publisher, it is justified in censoring student speech in the school newspaper because it may "disassociate itself" from speech that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences." (42) The Supreme Court also noted that administrators may censor speech that "associate[s] the school with any position other than neutrality on matters of political controversy." (43) The Court in that case expressly distinguished itself from Tinker, and created an alternative holding better suited for situations where "a school may refuse to lend its name and resources to the dissemination of student expression." (44)

      After Hazelwood, came Morse v. Frederick, where a school suspended a student for displaying a banner at a school event that read, "BONG HiTS 4 JESUS." (45) The Supreme Court distinguished this case from Tinker by reasoning that inhibiting student expression of illegal drug use goes beyond "avoid[ing] controversy." (46) Rather, it is well-settled that deterring student drug abuse is a compelling governmental interest. (47)

   2. Beyond Tinker: How Universities Create their Own Campus Speech Policies

      Although Tinker and its progeny produce a general framework of protections for free speech in education, application of the Tinker standard is limited to secondary school speech circumstances. (48) This is because issues arise when using a standard created for secondary students in the university setting due to differences between "the educational missions of secondary and post-secondary institutions." (49) On the one hand, primary and secondary schools are tasked with...