University Regulation of Student Speech: In Search of a Unified Mode of Analysis.

• Author: Miller, Patrick
• Position: NOTE

Universities are meant to be open marketplaces of ideas. This requires a commitment to both freedom of expression and inclusivity, two values that may conflict. When public universities seek to promote inclusivity by prohibiting or punishing speech that is protected by the First Amendment, courts must intervene to vindicate students' rights. Currently, courts are split over the appropriate mode of analysis for reviewing public university regulation of student speech. This Note seeks to aid judicial review by clarifying the three existing approaches--public forum analysis, traditional categorical analysis, and a modified version of the Supreme Court's education-specific speech doctrine--and proposes a more precise version of education-specific analysis. This Note proposes that when student speech may not be reasonably attributed to the school, any attempt by the university to regulate the content of student speech must be narrowly tailored to target only exclusionary speech and to protect core moral and political speech.

INTRODUCTION I. HARASSING SPEECH AND THE UNIVERSITY II. JUDICIAL REVIEW OF UNIVERSITY ACTION A. Public Forum Analysis 1. The Contours of Public Forum Analysis 2. The Virtues and Vices of Public Forum Analysis B. Traditional First Amendment Categories 1. The Contours of Pure Categorical Analysis 2. Courts Relying Solely on Categorical Analysis 3. The Virtues and Vices of Pure Categorical Analysis C. Education-Specific Analysis 1. The Contours of Education-Specific Analysis 2. Courts Adopting an Education-Specific Analysis in the University Context III. A BETTER WAY FORWARD CONCLUSION INTRODUCTION

The year 2017 was a trying time for universities as increasingly hateful demonstrations spread across the country. In an effort to maintain a welcoming and inclusive environment on their campuses, many public universities and colleges employ restrictions on offensive speech. (1) These restrictions include university speech codes and accompanying disciplinary actions. The chilling effects of such policies can have a profound effect on student speech, and many courts have invalidated campus speech codes under the First Amendment. (2) Yet universities continue to develop, modify, and enforce such policies in order to remove speech deemed offensive from campus discourse. (3)

Judicial review of university regulation of offensive student speech is particularly complicated because of the varying modes of First Amendment analysis used by courts. While some courts have adopted a public forum analysis, others use only traditional categorical analysis, and still others use an education-specific approach. Recent scholarship has also highlighted a divergence in opinions about the constitutional boundaries of student speech regulation. While some scholars argue that universities may legally regulate a good deal of speech, (4) others contend that the power of universities to regulate student speech is quite constrained, (5) and still others are unable to come to a conclusion on what the law is with regard to harassing speech. (6)

This Note argues that many university policies regarding offensive and harassing speech unconstitutionally infringe on student speech (7) and thus require careful judicial scrutiny. Such scrutiny is difficult, however, because of the conflict between the competing modes of analysis. In order to simplify and encourage searching judicial review of university speech policies, this Note argues that the Third Circuit's approach--which adapts the Supreme Court's education-specific speech cases (8) to the university setting--should be adopted and modified to better reflect First Amendment values and provide clear guidance to judges, university administrators, and students. When courts are reviewing university regulation of student speech, the university action should be invalidated unless it is narrowly tailored to prohibit only exclusionary speech and to protect core moral and political speech. In practice, this means that in order to punish a student for speech, the school would need to show that the speech created a hostile environment or substantially deprived the target of the speech of access to opportunities and that it was not an expression of moral or political conviction. (9)

Part I examines the current treatment of harassing and offensive speech on university campuses and concludes that judicial review is necessary because many universities are unconstitutionally restrictive in dealing with offensive speech. Part II evaluates the primary modes of analysis used by courts in evaluating university regulation of offensive student speech. Part III argues that the Third Circuit's approach best protects the First Amendment rights of students and suggests modifications to that approach to better protect speech.

1. HARASSING SPEECH AND THE UNIVERSITY

   Speech is given a "transcendent value" in American society, (10) and the "vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." (11) When speech rights are in tension with nonconstitutional interests, the First Amendment gives precedence to speech. 1 In part, this precedence stems from the recognition that speech rights respect individual autonomy, promote the robust debate a democracy requires, and foster a tolerant society. (13) Many of the ideas that Americans take for granted today were once considered dangerous and subversive and were targeted for censorship. (14) The vigorous search for truth requires that all views, especially unpopular views, get a fair hearing. (15) But to say that speech holds a revered place in American society is not to minimize the harm that may come from allowing some speech that is highly offensive to go unpunished. Defending the right of extremist groups to propagate hateful views will subject some vulnerable groups to offensive speech. (16) Sexist or racist speech may be used to perpetuate the marginalization of some groups. (17) The robust protection of speech inevitably shelters many wrong-headed and hurtful ideas under the umbrella of the First Amendment.

   Nevertheless, our constitutional order has elevated free speech to the status of a "transcendent value" (18) that requires "breathing space." (19) Furthermore, censorship is unlikely to solve the problems of hurtful speech. Some scholars argue that "censored speech becomes more appealing and persuasive to many listeners merely by virtue of the censorship." (20) When hateful speakers face censorship, they may become martyrs and icons to extremist groups, rather than objects of derision. (21) Additionally, censorship is often used against marginalized groups, rather than to protect them. (22)

   Instead of resorting to censorship, universities should consider every instance of hateful and harmful speech an opportunity to espouse the values of diversity, equity, and inclusion. The University of Michigan recently experienced a rash of anonymous hateful comments written around campus. (23) The resulting outpouring of support for minority students from the administration, various student organizations, and the student body at large has dwarfed the initial slurs and demonstrated the inclusive and welcoming nature of the university. (24) This is not to say that hateful comments should be encouraged because they can potentially produce a greater net balance of positive speech but that the energy of administrators is better spent on counterspeech than searching out and punishing the perpetrators. (25)

   Doubtless, many university administrators are stalwart defenders of the First Amendment and the freedom of speech. (26) But modern universities are complex entities serving diverse groups of stakeholders with various competing interests. Consider, for example, the broad array of university functions identified by R. George Wright:

   [L]earning and research; anti-discrimination; providing educational opportunities and making societal contributions; advancement of knowledge; freedom of expression and communication; promoting economic growth; disinterested scholarship; serving as societal critic; moral cultivation of the students; professional training; preparation for competent democratic citizenship; reflecting or determining status and opportunity hierarchies or promoting social mobility; and fundamental personal transformation. (27) Even a cursory glance at this list reveals competing objectives. Any attempts at moral cultivation, teaching professionalism, or combatting discrimination will require some type of response to offensive and inappropriate expression and communication. Yet preparing students for the realities of professional life and responsible citizenship requires equipping them to handle uncomfortable and controversial ideas. (28) This does not mean that American society should be characterized by pervasive offensive or hateful rhetoric, only that some measure of offensive speech is inevitable, and universities are well positioned to help students develop resilience by teaching them healthy ways to cope with hateful and offensive speech. (29)

   Caught between the desire to promote free expression and the desire to foster an inclusive and welcoming environment, university administrators may miscalculate and unconstitutionally regulate offensive student speech. (30) Mistakes are understandable--the law on campus speech regulation is fraught with ambiguity and uncertainty (31)--but the nature of the disciplinary process in universities makes overregulating speech costly. In the realm of the First Amendment, clarity is key, and mistakes may chill future expression.

   A chilling effect on speech can be traced to uncertainty. (32) When students are confused about what the First Amendment protects, they may refrain from making comments that are actually protected for fear that they are not. (33) Even when students have a clear understanding of their rights, if they doubt the ability of enforcement...