First Circuit Clarifies Scope of Students’ Free Speech Rights at Public Universities

Where is the line between free speech and sexual harassment? Students at public schools have both the right to free speech and expression, and the right to educational environments free of discrimination and harassment. At times, these rights can seem to run headlong into each other. When one student says something derogatory or offensive to another student, whose rights prevail?

Recently the First Circuit has been developing its jurisprudence in this thorny area. Last summer the Court held that a middle school could restrict a student’s expressive activity that demeaned and offended other students—in that case, wearing a shirt that said “There are Only Two Genders.” Then last month in Doe v. University of Massachusetts et al., the Court held that a college student who made a few comments that touch on sexual topics directed at different students, coupled with some non-sexual physical acts, was engaged in constitutionally-protected expression. These two cases have started to illustrate where the boundaries of protected student speech lie.

Doe v. University of Massachusetts et al.

This case started like many cases our firm handles: a group of students made a complaint that another student’s behavior made them uncomfortable. The school—UMass Lowell—investigated whether a male R.A.’s (John Doe’s) interactions with various female students violated its policy against sexual misconduct, specifically, its prohibition on sexual harassment.

There were three types of conduct at issue. The first was three statements Doe made, each to a different female student, which referenced sexual matters: asking a student if she wanted him to shove his penis in her face which Doe then explained was meant to be a comparison to religious proselytizing; allegedly stating to another student that that “if the food is good, I’d have sex while eating”; and while talking to a third student about being single, saying “I don’t need someone to have sex with.”

In assessing whether Doe had violated its prohibition on sexual misconduct, the school also considered two physical acts that one of the students alleged made her uncomfortable. The first was an instance where the female student was in Doe’s room, and he physically adjusted her feet on a piece of exercise equipment she was using. The second act was that on several occasions Doe extended his arms toward the same female student to invite or initiate a hug, which the female student said she felt “obligated” to engage in. The parties assumed that these physical acts were expressive conduct under the First Amendment, so should be treated like speech.

The school’s conduct panel determined that Doe’s actions created an environment that was offensive to multiple female students and therefore violated the sexual misconduct policy. The panel disciplined Doe.

The District Court Case

Doe sued the university, its trustees, and certain employees in federal court, alleging that they had deprived him of his First Amendment rights and violated the Massachusetts Civil Rights Act (MCRA). The district court consolidated Doe’s motion for preliminary injunction with a trial on the merits. In assessing whether the University and its employees violated Doe’s right to free speech, Judge Young applied the Supreme Court’s standard from Tinker v. De Moines, which sets out the standard for determining when public schools (in Tinker a junior high and high school) can restrict students’ speech activities. Under Tinker a school may restrict student speech in two circumstances: (1) if the speech substantially disrupts the school environment or (2) if the speech invades the rights of others. The district court found that the university’s actions were proper under Tinker.

The First Circuit’s Decision

The First Circuit found that Doe’s behavior was constitutionally-protected expression that the university could not punish.

Doe’s behavior did not cause a substantial disruption

As it had last year in L.M., the court noted that under Tinker’s first prong, in deciding whether there has been a substantial disruption to the school environment a court must consider the “special characteristics” of the specific school environment at issue. Unlike the middle school environment in L.M., where the Court found the school could restrict the student’s expression, in Doe the court held that college students are adults, are less impressionable than younger students, and are therefore less in need of being protected from exposure to harmful speech.

The Court also relied on precedent holding that Tinker does not allow schools to restrict speech solely because that speech might cause discomfort or offense, and noted that “substantial disruption” is a high bar to meet. The Supreme Court previously found that even where a student’s speech disrupted classes and upset other students, that speech could not be restricted. In this case, the Court noted that there was no allegation that Doe’s speech had any impact on the academic environment, which is the focus of Tinker. Instead, there was limited evidence that the female students found Doe’s statements “awkward” or preferred not to work with him. The Court also noted that there was no evidence that would allow the school to reasonably forecast that Doe’s behavior would cause a substantial disruption in the future, particularly because Doe’s actions were sporadic and he stopped those actions when he was told they made people uncomfortable.

Doe’s behavior did not invade the rights of others

The Court did not give much consideration to this argument, noting that there is little precedent on Tinker’s second prong, leaving it unclear what must be shown to establish that a student’s speech invades the rights of others. In the First Circuit, the only thing that has been established is that bullying invades the rights of others; the court hasn’t decided whether any other behavior does. Finding that Doe’s behavior did not rise to the level other circuits had established as invasions of the rights of others, the Court rejected the defendants’ argument that they could punish Doe’s speech because it invaded the rights of the female students.

Defendants’ entitlement to qualified immunity

The decision wasn’t entirely a win for Doe. The First Circuit decided that although his constitutional rights were violated, he could not get damages from the individual defendants. When public officials are sued in their personal capacity for money damages, they are immune from liability unless the right they violated was clearly established at the time of the violation. The First Circuit decided that Doe’s free speech right to engage in the comments and acts at issue in the case was not clearly established because there was no prior case sufficiently analogous to his situation to put the university officials on notice that punishing him for these acts would violate his First Amendment rights.

Lessons for students and schools

The First Circuit is still developing the law in this area, but cases like L.M. and Doe provide some guidance to students and schools. First, age matters. Schools with younger children are going to have more latitude to restrict speech that may disturb or offend those children than university administrators. Second, the context in which the speech occurs matters—the central question is whether the speech causes a substantial disruption to the school’s educational program. On college campuses, where students live, work, and socialize in addition to learn, there may be contexts where even disturbing or offensive speech is not impacting the educational environment. Finally, the First Circuit has made clear that students—particularly college age students—are expected to tolerate discomfort or offense, and only that speech that creates a significant disruption can be restricted.

If you or your child have been disciplined for engaging in speech activities, or have experienced discrimination or harassment on campus, contact our education attorneys at (617) 742-6020.