Free Speech on Campus
Speech at Rallies and Protests
Updated: January 20, 2009
Student codes of conduct may apply with equal force to student or faculty speech at on-campus political protest rallies. Speech outside the legitimate scope of the rally that is profane, threatening, an incitement to violence or directed specifically against an individual or group of students based on race, religion, gender, ethnicity, national origin, sexual orientation, gender identity or disability can be disciplined by the university.1 There is legal precedent for a university to be liable for a breach of contract if it does not enforce its code against hateful speech.2 However, speech within the scope of the rally and directed to a general audience is not punishable.3
More generally, colleges and universities are required to provide a learning environment that is safe and free from hostility for all students. A school violates its duty to prevent a hostile environment when (1) a hostile environment exists (2) the school has notice of the problem and does not utilize the mechanisms in place to notify the school, and (3) it fails to respond adequately to remedy the situation. In addition, students may have rights for protection from harassment under Title VI which prohibits discrimination on the basis of race, color and national origin in programs and activities receiving federal financial assistance.4
Federal law prohibits federally funded schools from allowing hostile environments to persist on campus in which students are harassed based on their race, color or national origin. Religion (as well as sexual orientation) is not included in the groups protected under the federal law,5 although some states and cities extend this protection to religion, sexual orientation, gender and/or gender identity. Victims of such an environment can sue for injunctive relief, to force the university to take action or to receive monetary damages.6
1 See Saunders, 417 F.2d at 1130; cf. Chaplinsky v. United States, 315 U.S. 568, 572 (1942) (holding that “fighting words” are not protected speech under the First Amendment).
2 Knoll v. Bd. of Regents of the Univ. of Neb., 258 Neb. 1 (1999) (holding that the University of Nebraska’s Student Code of Conduct created a duty of care for the university to act when a student was injured in a fraternity hazing incident). Private universities owe people who enter their land a duty of care. In some states, state law extends this duty to public universities as well. If the university is aware of a dangerous condition that exists on its land, it may be held liable if injury occurs to an invitee. Stockwell v. Bd. of Trustees of the Leland Stanford Junior Univ., 64 Cal. App. 2d 197, 200 (1944). Therefore, if injuries at protests are common on the university’s campus, then the university might be liable for injuries that occur at similar rallies in the future.
3 See Saunders, 417 F.2d at 1130; see also Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (forbidding the state to regulate speech that advocates the use of violence or lawlessness, unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite such action).
4 Monteiro v. Temple Union High Sch. Dist., 158 F.3d at 1033.
5 Monteiro, 158 F.3d at 1033.
6 42 U.S.C. ¤ 2000d-7; Young v. Pierce, 544 F. Supp. 1010, 1015 (E.D. Tex. 1982).