“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (Amendment 1, U.S. Constitution).
A spirited debate is taking place on many college campuses across the nation concerning the constitutionally protected right of the freedom of speech. The nation’s colleges and universities are, in theory, vital institutions in the augmentation and nourishment of the critical mind, honest inquiry, individual rights, and the core values of liberty, legal equality, and dignity. However, in recent years many students argue that universities have become the enemies of those qualities and pursuits. Arguing that the administrators of their schools are curbing their rights to expression and speech. That instead of “fostering the idea that academics come first by cultivating diversity of thought and culture” they are taking away constitutional rights and forcing pre-determined opinions on them. Out of this debate rises the question of how much control should be allotted to school administrators in monitoring the actions of their students, and when does a school “cross the line” and begin to infringe on a students constitutional rights. The answer lies in a balancing of the legitimate educational objectives, the need for school discipline of administrators, and the First Amendment values that guarantee the free speech rights of students.
In Protecting Freedom of Expression on the Campus, former Harvard President Derek Bok provides for us a classic confrontation between students arguing for the freedom of speech and an administration faced with a decision between the first amendments and appeasing the offended. He relates: “In recent weeks, such a controversy has sprung up at Harvard. Two students hung Confederate flags in public view, upsetting students who equate the Confederacy with slavery. A third student tried to protest the flags by displaying a swastika. These incidents have provoked much discussion and disagreement. Some students—especially minorities—have urged that Harvard require the removal of symbolic displays, arguing that they are insensitive and unwise because any satisfaction they give to the students who create them is far outweighed by the discomfort they cause to many others.”
The Harvard administration is now presented with a few options. They can follow what law professor of the University of Missouri-Kansas City, Douglas Linder calls on his Exploring First Amendment Law web page, the “Absolution Approach.” This makes use of the U.S. Supreme Court Justice Hugo LaFayette Black’s statement in the Supreme Court case Cohen vs. California as a reference point. Black’s ruling would suggest that the flags be taken down. Justice Black said that “no law is no law,” and that there is a difference between “conduct” and “speech.” The displaying, but not speaking, of words or symbols is “conduct” and therefore not protected by the First Amendment. They could even demand the removal of the flags under the protection of Supreme Court cases Bethel and Hazelwood. In Bethel, the Court upheld the right of Washington State High School administrators to discipline a student for giving a campaign speech at a school assembly that was loaded with sexual innuendo. The Court stated, “Administrators ought to have the discretion to punish student speech that violates school rules and has the tendency to interfere with legitimate educational and disciplinary objectives.” In Hazelwood, the Court relied to a great extent on Bethel in sustaining the right of school administrators to censor a student-edited school paper that concerned sensitive subjects such as student pregnancy and other topics that the court cited “an invasion of privacy.” In effect, these two cases grant school administrators a far greater ability to restrict the speech of their students than the government has in restricting the speech of the general public, and the Harvard administration could demand the removal of the flags, as “…the tendency to interfere with legitimate educational and disciplinary objectives.”
Please see "The War for Free Speech on Campus: Crying to be Heard, Part 2" for more on this topic.
