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Freedom of Speech and Campus Discipline: The First Circuit Highlights Limits on What Speech Public Schools Can Punish

Gordon-CollegeWe are going through an era of extraordinary political division. On college campuses as in broader society, both students and faculty are voicing widely differing views and beliefs. Colleges also have increasingly robust disciplinary rules applying to conduct including harassment, bullying, and discrimination that may be applied to conduct that takes the form of speech. At public institutions, the First Amendment protects students from discipline based upon their speech—but not in all circumstances. (Private institutions are another matter that I will address in a separate post.) This post reviews the basic law about free speech on campus and discusses a 2020 First Circuit decision that encapsulates the complexity of determining when speech is sufficiently disruptive of the school’s mission or of the rights of other members of the school community to warrant discipline.

First, the basic First Amendment background. In a seminal decision in Tinker v. Des Moines Independent School District, the Supreme Court addressed a situation in which three students wore black armbands to school in protest against the Vietnam War. The School District, aware of this planned protest, adopted a regulation prohibiting armbands and stating that students who refused to remove armbands would be suspended. The Supreme Court held that the regulation was an unconstitutional denial of students’ right of expression of opinion. But it also made clear that it was not holding that a public school could never take action that infringed upon student speech, and that schools can regulate “speech or action that intrudes upon the work of the schools or the rights of other students.”

In Papish v. Board of Curators of University of Missouri, the Supreme Court applied these principles in the context of higher education. There, the university had expelled a graduate student for distributing a newspaper on campus that the university concluded contained “indecent” speech—in the form of a headline containing the word “motherfucker” and a political cartoon depicting a policeman raping the Statue of Liberty. The Court held that universities, including public universities, have an “undoubted prerogative to enforce reasonable rules governing student conduct,” but “are not enclaves immune from the sweep of the First Amendment.” Because the distribution of the newspaper was protected First Amendment activity, the Court found that the student’s expulsion violated the First Amendment and ordered her reinstated.

Whether a student’s speech at a public college or university is protected or not may depend on the context in which it is made, and its effect on others on campus. Not all speech is protected. Fraud and threats, for example, are crimes that usually are accomplished purely by means of speech that in and of itself is a criminal act and is not protected. And universities can have disciplinary policies that forbid conduct that is not criminal. For example, many have policies forbidding harassment that are far broader than the definition of harassment contained in the criminal law of most states. But where a student’s speech merely expresses a viewpoint—even an unpopular one—a college that disciplines that student for the speech likely violates the First Amendment.

In Norris v. Cape Elizabeth School District, the First Circuit confronted a difficult situation involving rumors of sexual assault in a high school. A student—referred to in the decision as A.M.—anonymously posted a sticky note on a mirror in a Cape Elizabeth High School girls’ bathroom that stated “THERE’S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS.” Two other girls posted similar notes. The school’s administration began an investigation into the allegations in the notes, and into the identities of their authors. Through the investigation, they concluded that the notes referred to a particular male student, “Student 1”; that rumors had been circulating for some time that he had committed sexual assault; and that in fact the rumors were false and that he had not committed sexual assault. The male student “experienced ostracism” and bullying following the incident with the sticky notes. A.M. initially denied posting the note, but in a further interview acknowledged that she had posted it and claimed that she had done so “to address the problem of sexual assault in [the] school and because of concerns with the school’s handling of sexual assault claims,” and that she was not referring to any particular person when using the word “rapist.” The school (apparently not believing her) concluded that her note constituted bullying of Student 1 under the school’s policy and state law, and that she would be suspended for three days. A.M. filed suit to prevent her suspension from taking effect, and the district court granted her a preliminary injunction. The school appealed to the First Circuit Court of Appeals.

The First Circuit held, first, that the protections in Tinker—the armband case—are not limited to only “core political speech.” It then held that the sticky note, whether it was or was not “core political speech,” was “entitled to some First Amendment protect.” It agreed that the incident was “a serious event and legitimately of concern to school administrators.” Where the only reason A.M. was given at the time of her suspension was that she was guilty of bullying, the court reviewed only that reason, not other rationales the school had articulated after the fact. The First Circuit recognized that bullying “implicates the governmental interest in protecting against the invasion of the rights of others,” but held that if the school relies on that basis for restricting student speech, “there must be a reasonable basis for the administration to have determined both that the student speech targeted a specific student and that it invaded that student’s rights.” Because the First Circuit ultimately agreed with the district court that the school had failed to show a connection between the sticky note and the harm that Student 1 suffered, it upheld the injunction, preventing the imposition of the discipline.

Norris is important because the court refused to take the school’s stated reason for the suspension at face value. Many colleges and universities have disciplinary policies that cover broad categories of conduct and could easily be applied either to protected or unprotected speech. To take a random example of a local public college, UMass Boston’s Code of Conduct forbids “disruptive behavior,” “harming behavior,” defined to include “harassment” and “bullying,” “discriminatory behavior,” and “uncooperative behavior.” While the code gives some guidance on how these prohibitions may be applied in practice, that guidance is clearly not comprehensive and gives the school immense discretion. While Norris does not abandon courts’ traditional deference to educational institutions about discipline, the court’s willingness to examine whether the conduct at issue actually did constitute bullying is a refreshing sign that educational institutions are not free to suppress student speech whenever they invoke their disciplinary rules.

If you or your child is being disciplined by a school for speech, contact our student rights lawyers at (617) 742-6020.

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