Third Circuit puts public college speech codes in their place

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Aug 19, 2010 Third Circuit puts public college speech codes in their place


Bill of Rights (From public domain.)

One benefit of attending a government-run college versus a private college is that the Constitution applies to the first but not the second. 

Consequently, when my alma mater Tufts, a private university, initially placed a student on probation (and later reversed that shameful decision) for distributing an abhorrent and sophomoric t-shirt with fifteen alleged reasons why beer was better than women at Tufts, the Constitution was not available to give him relief. I certainly wrote a rant to the dean of students over this before the probation had been reversed.

Conversely, when University of the Virgin Islands (a government-run university) student Stephen McCauley was disciplined for allegedly harassing a student who alleged criminal assault against Mr. McCauley’s friend, Mr. McCaualey had the First Amendment available to him. McCauley v. U.V.I., et al., ___ F.3d ___ (3rd Cir., August 18, 2010). Yesterday, August 18, the Third Circuit held that two provisions of UVI’s speech code “are largely subjective and lack limiting constructions to save them from violating the First Amendment.” 

McCauley provides in-depth analysis showing why public university students have more expansive First Amendment rights against student discipline than do students in public high schools and elementary schools. For instance, McCauley says:

[O]ur Circuit recognizes that “there is a difference between the extent that a school may regulate student speech in a public university setting as opposed to that of a public elementary or high school.” Id. at 315. Public university “administrators are granted less leeway in regulating student speech than are public elementary or high school administrators.” Id. at 316 (emphasis in original). “Discussion by adult students in a college classroom should not be restricted,” id. at 315, based solely on rationales propounded specifically for the restriction of speech in public elementary and high schools, see id. Cf. Sypniewski, 307 F.3d at 260. “Certain speech . . . which cannot be prohibited to adults may be prohibited to public elementary and high school students.” DeJohn, 537 F.3d at 315 (emphasis in original); cf. Healy, 408 U.S. at 180.

We reach this conclusion in light of the differing pedagogical goals of each institution, the in loco parentis role of public elementary and high school administrators, the special needs of school discipline in public elementary and high schools, the maturity of the students, and, finally, the fact that many university students reside on campus and thus are subject to university rules at almost all times.

Thanks to a fellow listserv member for having brought McCauley to my attention.


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