13. First Amendment and Higher Education

“You’re all students, and so am I, but don’t let that keep you from thinking. The world is sick, and you’re going to be asked to pay the doctor’s bills. And if you don’t do something about it soon, it’ll be the undertaker. Don’t believe the lies they hand you here. They’re teaching you to crush labor, the proletariat of the world… America must take the lead in creating a new world, but first you’ve got to tear down the old one.”   (Red Salute, 1935, Barbara Stanwick,  Robert Young. United Artists.)
Following this relatively mild statement, openly contested by other students, a university dean throws a student speaker   out of town in the beginning of  Red Salute.  It’s cartoonish, but such things have happened.
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The right of students and faculty to express themselves on US college campuses was contested all through the 20th century and is still being contested.  One of the most interesting historical moments concerning free speech on campus is depicted in the banner photo at the top of this page. Here US president Theodore Roosevelt, in 1905, is lecturing Duke University administrators and state politicians on the virtues of  tolerance. Roosevelt was there to support Duke University Prof. John Bassett, who was about to be fired for expressing admiration for Booker T. Washington (a famed African American educator.)  

Freedom of speech is a fundamental right guaranteed under the Virginia Constitution, the First Amendment of the US Bill of Rights and Article 19 of the Universal Declaration of Human Rights.

But freedom of speech is often marginalized in the one place where it ought to be respected the most: A college campus in the USA. Although the usual platitudes about tolerance, diversity and freedom of expression can be found in most US campus speech policies, in practice, freedom of speech often involves ideas that are too challenging for the buttoned-up administrators of most universities to actually tolerate.

It could be worse. In China, there are seven prohibited topics at universities.  (These are: universal values, citizen rights, civil society, judicial independence, freedom of the press, the privileged capitalist class, and past mistakes of the communist party.)  In Saudi Arabia, a  young journalist who expressed doubt about his religious faith was jailed by order of the king and condemned without trial in 2012.  And there are many similar free speech controversies all over the world that involve imprisonments, torture, exile, and executions.

Of course, repression of speech by US and European institutions doesn’t come close to this level of totalitarianism. Even so, at many US universities,  avenues for student expression can be strictly limited in ways that are clearly unconstitutional and open to court challenge.  Many administrators believe they can suppress student speech like the cartoonish deans in the Depression-era film “Red Salute.”

For instance, at one embarrasingly backwater state-supported university in Virginia, administrative officials collaborate with locals, sending police to take down private fraternity house signs if they happen to be visible during non-approved days.  The goal — apparently — is to regulate student drinking.  But for the government to intervene in any way that affects a person’s right to free speech, the regulation has to focus, narrowly, on a compelling interest.  The law is quite clear on this point.

Other rules regulating free speech “zones,” use of university facilities such as  bulletin boards, discussions on campus email, even the use of sidewalk chalk, all serve to limit expression on some college campuses.  But, as the speaker in Red Salute says, don’t let that keep you from thinking.

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The history of  higher education goes back nearly 1,000 years, to the adoption of an academic charter, called the Constitutio Habita,at the University of Bologna around 1155.  This charter provided for certain immunities, freedom of travel, and the right to be tried in a university court rather than civil court.  With the establishment of similar universities across Europe came the expectation of some limited academic freedom, but two famous cases exemplify the many thousands who were persecuted for their beliefs.   Giordano Bruno, a Domincan Friar and mathematician, said in the late 1500s that the earth revolved around the sun. He apparently thought he was safe at the University of Padua and teaching in Venice, but was denounced to the Inquisition and burned at the stake in 1600.   Galileo was another university scholar persecuted for astronomical beliefs, although he avoided Bruno’s fate by confessing (insincerely) to his “error.”

The history of free speech at US universities begins with the establishment of Harvard school in 1636 for the training of clergy in the Puritan faith.  It may be ironic that Henry Dunster, the first president of the first university in America, was forced to resign in 1654 when he dissented from a religion founded by dissenters.  And to create a more Puritan university, in  1692, Harvard president Increase Mather removed all the old Greek and Roman books and confined teaching to Christian authors.  (Mather and his son Cotton were also involved in the Salem Witch Trials around this time).

With the dawn of the 18th century,   Harvard, William & Mary,  and other American universities saw a struggle between religious control and an increasingly liberal approach to higher eduction. Freedom of speech and academic freedom were highly contested in that atmosphere.

Among the 20th century highlights of First Amendment and Higher Education issues:

  • The John Bassett Affair In 1903, Duke (then Trinity) University historian John Bassett expressed admiration for Booker T. Washington, a then-famous African American leader, putting him on a par with Robert E. Lee. Outraged politicians demanded that he be fired. Trinity refused, and then-president Theodore Roosevelt came to Trinity to congratulate Bassett in a commencement speech. “You stand for Academic Freedom, for the right of private judgment, for a duty more incumbent upon the scholar than upon any other man, to tell the truth as he sees it, to claim for himself and to give to others the largest liberty in seeking after the truth.”
  • The dismissal of Prof. Max Meyer In 1929, University of Missouri professor of experimental psychology was dismissed for supervising a study involving questions about sexual conduct which were then considered to be scandalous. The university was censured by AAUP for the dismissal.
  • The Red Scare (1940s – 60s) Colleges and schools around the country began requiring loyalty oaths; those who objected were dismissed. (Also see History of UCLA and McCarthyism).
  • Civil rights / free speech movement In 1964 and 1965, students at the University of California Berkeley demanded that the university administration lift a ban on political activities at the campus and acknowledge the students’ right to free speech and academic freedom.   Demonstrations started after the arrest of students who were simply passing out pamphlets supporting the civil rights movement.
  • Anti Vietnam War Movement led to another wave of controversy. In 1969, the  Tinker v. Des Moines School District case was heard by  the Supreme Court, which upheld the right of  children to wear black armbands as a protest.   That decision contains this  statement: “It  can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  According to the court, schools could only  suppress student expression if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
  • Speech codes have created controversy through the 1970s and 80s, exemplified in the Doe v. University of Michigan case in 1989 and the Water Buffalo incident of 1993, among many others. Other speech codes, for example involving requirements for stamps on posters and approval of off-campus signage for certain student groups continue to be controversial. The Foundation for Individual Rights in Education recently started a rating system for campus speech codes.
  • Free speech zones have been controversial in the 1980s – 2010s period. They have been altered or abolished at Tufts University, Appalachian State University, West Virginia University and Penn State University. Controversies have also occurred recently at the University of Southern California, Indiana University, the University of Nevada, Las Vegas,and Brigham Young University, according to this Wikipedia article.
  • Student press issues have been contentious and complicated since the 1960s. Major cases  include Hazelwood v Kuhlmeier   (1988), where the court said high school press had limited rights,  and Hosty v Carter (2005), a  7th district court decision that limited college press. Another limitation on college press was Educational Media Co. (Collegiate Times) v Insley (Va. ABC Board) in 2012, in which ABC rules prohibited student newspapers from running alcohol beverage advertising.
  • Symbolic speech in K-12 schools – In 2013, a federal judge ruled that Pennsylvania students were entitled to wear “boobie bracelets” in support of breast cancer.

Next:  First Amendment & Higher Education cases

Also see:  RUSpeechless web site