NOTICE : Dec. 26 and Jan. 2 - Holiday office closures. Click for details.
Civil Liberties of Students In Higher Education
By Daniel Weisman
Students in higher education face a variety of challenges to their civil liberties, through such mechanisms as censorship, thought and behavior codes, private and arbitrary disciplinary procedures, and release of records to governmental authorities and corporations. This paper reviews students' legal rights in private and public schools, some typical civil rights challenges experienced by students, and recent court cases. Findings include: the freedoms of speech, press and assembly are violated most often (e.g., campus hate speech codes) when students take unpopular or "politically incorrect" positions; when violations are challenged, or made public, the college or university usually backs down or loses in court; the courts have not been as supportive of privacy rights as they have of speech and due process rights; while private schools are not literally subject to constitutional requirements, the courts have held them to similar standards for other reasons; and for the most part, the use of Internet resources does not change student rights, but there are some differences. The paper concludes with some suggestions for students and university administrators.
More than 15 million students are enrolled in 3,600 colleges and universities across the country (U.S. Bureau of the Census, 2002; Foundation for Individual Rights in Education [FIRE], 2002). In addition to their studies and other responsibilities, they face a variety of challenges to their civil liberties, including but not limited to their rights to speech, press, assembly, privacy and due process (Kors and Silverglate, 1998; FIRE, 2002). In the very environments in which they and their families might reasonably expect to find fairness, intellectual respect, expansive freedom of inquiry and open exploration of the human condition, students often encounter censorship, thought and behavior codes, private and arbitrary disciplinary procedures, and release of records to governmental authorities and corporations.
This paper will begin with a review of the legal bases for most student rights that come under attack by college and university administrators, examine some of the more prevalent civil rights challenges experienced by students over the last twenty years, explain how the courts have responded when students sought redress over rights violations, and suggest some alternative approaches to balancing individual rights and the interests of institutions of higher education.The Bases for Student Rights that are Often Violated
While there is no singular body of law delineating the rights of students, there are several laws and traditional practices that guarantee basic liberties to students who attend either public or private colleges or universities. For students in public institutions of higher education, the U.S. Constitution, especially the Bill of Rights and the Fourteenth Amendment, describe the limits of governmental actions with regard to individuals. For example, freedoms of speech, assembly, and religion (free exercise and establishment) are contained within the First Amendment. The Fifth and Fourteenth Amendments define due process and equal protection.
Besides the U.S. Constitution, the U.S. Congress has enacted legislation protecting the rights of particularly vulnerable people. For example, the Family Rights and Privacy Act of 1974 (FERPA) protects the privacy of some student records, and the Civil Rights Act of 1964 (and subsequent amendments) addresses workplace discrimination, unequal treatment, harassment and other abuses. Often, these laws apply to both private and public institutions, albeit differently, extending the umbrella of protection beyond public colleges.
States have the power to expand (but not reduce) civil rights and liberties of individuals, so state constitutions, statutes and tort law may define student rights beyond those protected federally. At the local level, public and private campuses may be guided by collective bargaining agreements (with faculty, staff and, more recently, graduate students employed as research or teaching assistants), and/or institutional mission statements and other literature describing the philosophy of the college or university (e.g., student handbook) and amounting to a binding contract.
These sources of student rights, like much of the U.S. legal system, are constantly shifting for several reasons. The concept of individual rights is dynamic and evolves as our society grows (Walker, 1990, pp.6-7). Events such as the recent terrorist attacks create new sensitivities, reactions, fears and, ultimately, policies at both private and public levels. The U.S. population is constantly changing, placing burdens on colleges to be appropriate and responsive to all student populations. Technologies create new opportunities for educational inquiry as well as rights abuses (e.g., the Internet). The U.S. legal system is fragmented to the extent that laws and regulations are made at nine different levels: administrative, legislative and judicial branches at each of three locales: local, state and federal. It is also a system that continually reshapes interpretations of the law on the basis of situation-specific case decisions. So the same Constitutional phrase can be applied differently by the courts in response to the minute details of individual lawsuits.
The result is a dynamic system that continually refines and redefines the law through legislative, administrative and judicial processes. What is certain is that most of the issues that affect higher education, as well as other arenas of human enterprise, continue to evolve, with the consequence that student, faculty, staff and institutional rights also shift over time.Students' Civil Liberties at Risk and Court Actions
As stated above, this discussion will focus on student civil liberties issues that have received the most attention in recent years either in the courts or in other arenas of public policy. These issues fall into categories of speech (including press and assembly), due process and privacy. Following are some illustrative recent cases for each of the three categories.Speech (Press and Assembly)
A common denominator among speech cases is an episode of offensive expression by a member of the campus community. The statements are usually vulgar, insensitive, hurtful and widely repudiated. But the issue here is not the message but the principle of free expression on both public and private campuses. When the constitutional (public colleges) and contractual (private colleges) right to speech comes into conflict with the sensitivities of college administrators, the First Amendment often is discarded and the speaker's First Amendments rights are violated.
Student newspapers, published both on and off campus, have been confiscated by college officials, who object to content, veracity or political correctness of messages or ads. In some cases, students have "stolen" free student newspapers that were stacked up in trafficked areas of the campus, with no response from college officials. A recent federal court case involved a student yearbook confiscated by officials at Kentucky State University, because the students included a current events section and made the cover purple instead of KSU's colors (Kincaid v. Gibson). In that case, decided in 2001, a federal appeals court ruled that KSU violated students' rights: "We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government," according to Judge R. Guy Cole, writing for the majority (Student Press Law Center [SPLC], 2001).
The freedom of assembly is challenged sometimes, especially when the student group embraces an unpopular cause. In April, 2002, for example, 41 students were arrested and charged with trespassing at the University of California at Berkeley for holding a pro-Palestinian rally. The student group, Students for Justice in Palestine, was also suspended. The suspension was later rescinded, but the university's actions prompted the ACLU to comment: "The University's reaction to the sit-in has a chilling effect on the students' right to free speech, especially at a time when freedom of expression is so critical to our democracy. Expressing ideas that are controversial and unpopular must be vigilantly protected. The important First Amendment principles at stake do not permit administrative action that appears to be unprecedented and to make an example of this controversial group" (American Civil Liberties Union [ACLU], 2002a).
Sometimes universities seek to restrict student speech as an easy solution to difficult public image problems. In May, 2002, a federal district court ruled that the University of Illinois "violated the free speech rights of students and faculty when they required 'pre-clearance' for any statements about the school's controversial use of Native American Chief Illiniwek as a mascot" (ACLU, 2002b). An ACLU press release assessed the implications of the decision: "Citing a 1977 case from the U.S. Court of Appeals for the Eighth Circuit, the decision notes, 'it is axiomatic that the First Amendment must flourish as much in the academic setting as anywhere else. To invoke censorship in an academic environment is hardly the recognition of a healthy democratic society'" (ACLU, 2002b).
The landmark case that is widely cited as the foundation of students' rights was Tinker v. Des Moines Independent Community School District (393 US 503 ). Several students were suspended from a public high school for wearing black armbands in protest of the Vietnam War. The school system defended its action by expressing fear that the demonstration would spark student unrest. The United States Supreme Court found that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and school officials may not punish or prohibit student speech unless they can clearly demonstrate that it will result in a material and substantial disruption of normal school activities or invades the rights of others. "In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," wrote Justice Abe Fortas for the majority. "In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution." [Quotes from the decision.] Subsequent court decisions asserting college students' rights to free speech frequently have referenced Tinker.
Private colleges are not immune from free speech issues. According to the Student Press Law Center (SPLC), while private institutions usually are not required to conform with constitutional protections, other factors may come into play, notably, the schools' own rules, guidelines, literature and catalogs (SPLC, 1995). An example is a case at Princeton University, which began in April, 1978, when a non-student (Chris Schmid), who was distributing literature from the U.S. Labor Party, was arrested and prosecuted for trespassing. In state court, Princeton University argued that its "institutional academic freedom," i.e., power to control its own environment, was sufficient grounds to eject Mr. Schmid and to sustain trespassing charges. Schmid countered that his free speech and assembly rights (as enumerated in both the U.S. and N.J. Constitutions) were violated by the private institution. The court eventually sided with Schmid (State v. Schmid), but not on Constitutional grounds, but because Princeton's own literature portrayed itself as an open forum (e.g., from Princeton's regulations: "Free speech and peaceable assembly are basic requirements of the University as a center for free inquiry and the search for knowledge and insight."), so it had violated its own contract with its students and its community (Kors and Silverglate, 1988, pp. 59-63).
The concept of "institutional academic freedom" dates back to 1940, when the American Association of University Professors (AAUP) issued its Statement of Principles on Academic Freedom and Tenure (AAUP, 2002), delineating both faculty and institutional academic freedoms. That document was subsequently legitimized by the U.S. Supreme Court's McCarthy era rejections of loyalty oaths in public institutions (Kors and Silverglate, 1998, pp. 50-59), and has served as a guide for subsequent cases in which faculty and institutional rights have come into conflict.
While some ambiguity regarding academic freedom remains unresolved (AAUP, 2002), the courts have viewed institutional academic freedom as pertaining narrowly to the school's central mission and not as a basis for imposing values on students, with the exception of private (particularly religious) colleges that widely publicize their philosophies in unambiguous terms (Kors and Silverglate, 1998, pp. 52-57). It should be noted that faculty academic freedom was broadly defined in the AAUP's 1940 document (AAUP, 2002. pp. 1-7), and the courts have been more reluctant to set limits on professors' speech than on institutional freedoms, but there are limits on both (Kors and Silverglate, 1998, p. 277). To date, no clear court decision has clarified guides for resolving conflicts between institutional and individual academic freedoms, except for the consistently clear message that "institutional academic freedom supplements, but does not supplant, the First Amendment freedom right of professors" (AAUP, 2002, p. 8).
Student academic freedom has not been specifically defined in the AAUP's 1940 statement or in subsequent case law. But the principles set forth in the AAUP's documents, beginning in 1940 and continuing through the present time, contain widely recognized implications for the implied existence of corollary student academic freedoms, including free expression and freedom to seek truth, disagree and learn (Kors and Silverglate, 1998, p. 52-53).Speech on the Internet
Over the last two decades, the Internet has become an essential tool for people involved in higher education. For students and faculty, it is both a research tool and a platform for self-expression. It is also a connection to the outside world, and vice versa. For the most part, the principles guiding free speech and freedom of the press apply to the Internet. But, because the Internet is electronic, digital, almost boundless and there is no control over sources or destinations of information, some special issues arise, some as yet unresolved.
The AAUP (1997) identified two areas which may need to be clarified in the future, both involving sexually explicit materials. First, while university libraries are not required to obtain every book requested by faculty and/or students, there is likely to be discussion about the limits that institutions may want to establish with regard to electronic materials, especially sexually explicit content. At least one federal court has upheld a public university's restrictions of such materials. Second, distribution of print materials is easier to control than posting of electronic products. Of particular concern is avoiding Internet posting of child pornography (AAUP, 1997).
As is the case of speech, content-neutral criteria should guide schools' approaches to managing their interactions with the Internet. Considerations such as time of use and amount of time on line, if applied equitably, are acceptable. But user codes with vague terms or which ban content run afoul of the First Amendment, as do speech codes (AAUP, 1997; SPLC, 1998a). Student press rights on the Internet are similar to those in place for print publications. For example, administrators in public colleges cannot censor or restrict student newspapers' online publication. On the other hand, colleges and universities are not obligated to link student sites to their websites as long as the criteria are content-neutral (SPLC, 1998a).
Internet service providers (ISPs) have been held not liable for their subscribers' messages, so colleges cannot claim they are liable for libelous student messages (SPLC, 1998b). However, students themselves and/or their publications face more exposure to libel cases when they publish electronically because the product can reach more people (SPLC, 1998b). So far, copyright laws apply to the Internet about as they do to print media, so materials should be reproduced with the owners' permission (SPLC, 1998b).
For private colleges and universities, the issues are similar to those discussed in the speech and press sections: these schools are not bound by constitutional guidelines, but they may be committed to speech, press and expression protections for students because of their literature or procedures, or various federal and state laws (SPLC, 1998a).
Privacy issues and the Internet will be reviewed in the privacy section.Hate Speech and Speech Codes
Over the last two decades of the 20th Century, many if not most college campuses have adopted codes or guidelines limiting student speech (Associated Press, 2002). Campus speech codes are usually taken in the interest of protecting minority, female and gay students from harassment or discomforting comments by other students, often in response to a precipitating expression or act with ethnic or racial content (Calleros, 1997). Precise numbers of campuses with hate speech codes are unknown but a survey conducted in 1993 by the National Association of Student Personnel Administrators found that 47.5% of responding institutions in the region sampled (seven eastern states) had codes in place and another 18.7% were considering adopting codes (Palmer et al., 1997, p. 117).
Campus hate speech codes are usually defended in court (with very little success) on the basis of a 1942 U.S. Supreme Court ruling (Chaplinsky v. New Hampshire), in which the Court established the "fighting words" exception to the First Amendment, and the "hostile environment" concept authored in 1985 by the Equal Employment Opportunity Commission, on the basis of the 1964 Civil Rights Act (Namazi and Cahill, 1994). While the "fighting words" doctrine has declined as a legal justification for speech codes, proponents continue to look for defenses. Namazi and Cahill (1994) suggested constructing an equal opportunity argument, similar to the approach used successfully in the Cleveland school voucher case this year. This approach would characterize hate speech as jeopardizing equal educational opportunity by putting targeted students at a serious disadvantage in classrooms and other campus locations. Equal opportunity enjoys higher status in the Court than fighting words and might stand up to the Court's concern for free speech.
To date, though, the fighting words doctrine is the most current court-tested rationale for campus speech codes. Fighting words are those that "by their very utterance inflict injury or tend to excite an immediate breach of the peace" (Kors and Silverglate, 1998, p. 40). A related doctrine, "group defamation," was coined by the Supreme Court in a 1952 decision, Beauhamais v. Illinois, which forbade expression in public places which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots" (Kors and Silverglate, 1998, p. 41).
Almost immediately, the Court began diluting these doctrines and has been doing so consistently since they were first expounded. As campus speech code cases are challenged in the federal courts, the codes are struck down even though they are defended on the bases of "fighting words" and other doctrines that would limit free speech (ACLU, 1996; Kors and Silverglate, 1998, pp. 82-86). The courts have been more tolerant of speech limitations that are "content neutral," that is they apply equally to all groups and messages, and they curtail speech for everyone equally at specified times, places and circumstances. For example, loud speech between Midnight and 7 AM may be banned on campus so everyone can sleep undisturbed (Kors and Silverglate, 1998, p. 47).
The requirement that workplaces must avoid being hostile environments, particularly regarding race and gender, began to be extended to college and university campuses in the late 1980s and has yet to be reviewed by the Supreme Court. However, lower federal courts, citing previous Supreme Court decisions, have consistently ruled that the free speech provisions of the First Amendment take precedence over regulations issued by a federal agency. In 1991, for example, the federal district court in eastern Wisconsin ruled (UWM Post, Inc. et al. v. Board of Regents of the University of Wisconsin) that the University of Wisconsin's speech code violated the First Amendment, rejecting the hostile environment defense and noting that the EEOC regulations apply to workplaces, not public educational settings (Kors and Silverglate, 1998, pp. 88-91; Palmer et al., 1997, p. 113).
The Supreme Court has provided some help for universities which are interested in balancing collegial environments and free speech. In R.A.V. v. St. Paul (1992), the Court ruled that a city ordinance prohibiting visual messages on public or private property that would arouse negative responses on the basis of race, ethnicity or gender was unconstitutional because the law addressed particular content. In Wisconsin v. Mitchell (1993), the Court ruled that a state law enhancing penalties for crimes that were motivated by bias was constitutional (Palmer et al., 1997, pp. 114-115). While neither case emanated from a college campus, both have implications for how the Court might assess campus codes, yet a survey of college administrators soon after those decisions found that most were not aware of the decisions and even among those who knew of the cases, less than half would apply them to formulation or revision their own campus codes (Palmer et al., 1997, pp. 117-118).
There is a distinction between speech and conduct. The former has been protected in federal and state courts, even on some private campuses, when the consequence is essentially hurt feelings, discomfort or embarrassment. The latter is subject to regulation when it "targets a particular individual" and "interferes with a student's ability to exercise his or her right to participate in the life of the university" (ACLU, 1996). Acts of violence, destruction of property, invasion of privacy and intimidation (e.g., taunting, threatening phone calls) should be punishable under appropriate statutes addressing behavioral actions (ACLU, 1996). But with regard to speech, even tasteless and obnoxious speech, there is no right not to be offended.Due Process
Campus speech codes usually result in violations of students' rights to due process in disciplinary proceedings. Typical scenarios involve an offensive statement or an action that is interpreted by campus officials and/or purported victims as offensive, the transgressor being informed by an advisor or other official that he (gender specificity deliberate) has been accused of violating the speech or behavioral code, a closed hearing in which charges are explained and the student is invited to prove his innocence, and the meting out of a disciplinary decision, usually ranging from an official reprimand to suspension or expulsion. There are several civil liberties violations in these proceedings and the courts have repeatedly overturned campus disciplinary punishments.
A well-publicized example of due process and speech codes occurred at the University of Wisconsin in 1987, where a fraternity held a mock slave auction. Under a speech code which was drafted with previous court decisions in mind, students were disciplined for intentionally creating an environment that was hostile towards education. University officials (including then-Chancellor Donna Shalala) attempted to build the code on the basis of institutional academic freedom (learning environment) and to avoid violating professors' academic freedom by excluding them from the code. Nevertheless the U.S. district court for Eastern Wisconsin found the code unconstitutional primarily because it regulated speech and was vague (Kors and Silverglate, 1998, pp. 167-68).
Due process rights are anchored in the Fifth and 14th Amendments of the Constitution and, over the years, have been separated into categories of substantive and procedural rights. The former pertains to government abuse of its power. The latter covers the procedures that are employed to determine whether an accused person is guilty or innocent. In addition, the Fourth Amendment protects people from unreasonable search and seizure, such as illegal room or Internet account searches.
Procedural rights consist of four components (Kors and Silverglate, 1998, pp 271-275):
Right to prepare a defense and legal counsel Right to cross examine witnesses and accusers Right to a public trial or procedure Right to an impartial trial or procedure.
In a review of 35 instances of speech code enforcement by college and universities, Kors and Silverglate (1998, pp. 151-178) found the common denominator of violations involving some or all of these four elements of procedural due process.
As is the case for free speech, private institutions may find themselves bound to due process requirements also, not for constitutional reasons but because they either embrace procedural rights in their literature or establish a due process procedure, however inadequate (Kors and Silverglate, 1998, p. 296). Two cases in the same state (New York) are illustrative of this issue and its ambiguity. In 1994, Hofstra University fired a faculty member for harassment but the New York State Supreme Court reversed the firing because Hofstra had a procedure that committed the institution to due process (Kors and Silverglate, 1998, p. 296). In 1999, a New York State appellate court dismissed a lawsuit against Cornell University, in which a professor (accused of sexual harassment) alleged that the university's enforcement of its speech code violated his due process rights, even though the allegations turned out to be unfounded (Center for Individual Rights [CIR], 1999).Privacy
The Fourth Amendment provides the constitutional basis for privacy: "The right of the people to be secure in their persons, houses, papers, and effects, against unusual searches and seizures shall not be violated…" Federal laws have both delineated and eroded student rights, notably the Family Educational Rights and Privacy Act of 1974 (FERPA), which forbids release of student records without the student's consent, and the USA/Patriot Act of 2001, which permits government agencies to require colleges and universities to release student records without students' consent or even knowledge (ACLU, 2002c). [In addition, the states vary on privacy rights they guarantee along 21 different components, such as credit, employment, medical, school records and wiretaps (Electronic Privacy Information Center, 2002).]
Signed on October 26, 2001 by President Bush, the USA/Patriots Act contains numerous provisions in response to the September 11, 2001 terrorist attacks, and remains to be tested in the courts. For students, particularly salient is the new power given to law enforcement officials to obtain secret orders for release of information formerly protected under FERPA, purely on the grounds of the U.S. Attorney General's assertion that the information is needed for a terrorism investigation (ACLU, 2002c). Furthermore, the Act gives federal authorities the right to obtain students' personal and academic information that previously was strictly protected, including campus activities, test scores and financial records (ACLU, 2000c). For foreign students studying in the U.S. on visas, the Act gives federal authorities even more access to information, including the establishment of a national database (ACLU, 2002c).
The Fourth Amendment (public education) and FERPA (public and private schools) otherwise would appear to protect students from release of information to third parties, but the U.S. Supreme Court ruled on June 21, 2002, that FERPA does not include students' right to sue institutions if they released confidential information (Greenhouse, 2002). The case involved a student at a private university who sued the school because confidential and inaccurate information had been released, costing the student a job. The court ruled on the basis of an individual's right to sue, not the validity of FERPA, so it appears that Congress could choose to close this loophole in the law. Earlier in 2002, the ACLU reported that the Nevada public university system sold the names and address of former students to credit card companies, an apparent violation of FERPA (ACLU, 2002d).
Another privacy concern is the use of Social Security Numbers as student identification numbers. This is a prevalent practice in colleges and universities, and poses threats to students' privacy because of the possibility of identify theft, easy access by third parties to students' computer accounts, library privileges and records, grades and other records, and breaking into students' bank accounts, all of which have occurred (Privacy Rights Clearinghouse [PRC], 2001; Schwartz, 2002). In 1992, a federal district court ruled that Rutgers University's use of SSNs on class rosters violated students' privacy rights but Rutgers was granted an exception to FERPA, permitting it to use SSNs as student identification numbers (PRC, 2001). In July, 2002, news stories reported that Princeton University had accessed Yale University's web site to obtain data about students, on the basis of SSNs (Schwartz, 2002).
Privacy on the Internet remains an unresolved issue. On the one hand, anything posted is likely to be seen by unintended people because most email is insecure. So, the sender's expectation should be that there is less privacy than with print mail (AAUP, 1997). Also, the fact that the institution owns the hardware and manages the network may foster the (unsubstantiated) perception that it should have some access to the content (AAUP, 1997). In sum, as the Internet and email have become essential elements for faculty and students, privacy protections have not followed and need to be addressed (AAUP, 1997).Summary and Suggestions
The rights of students at public and private colleges and universities, like civil liberties for many vulnerable populations, are both at risk and in flux. Some rights are more secure than others. At the administrative level, there is persuasive evidence that students' rights are abused frequently and the vast number of violations go unnoticed and unquestioned. When rights violations are challenged, the results vary by topic area and auspice of the school.
The freedoms of speech, press and assembly are violated most often when students take unpopular or "politically incorrect" positions, or express themselves in ways that embarrass the institution. A recent example was at Ohio State University's June, 2002 commencement exercise when some students turned their backs on the featured speaker, President Bush, and were ejected by the police (Bush and Free Speech, 2002). Institutions' procedures for implementing policies that prohibit offensive speech often violate basic due process procedures. When these violations are challenged, or even made public, in the vast majority of cases the college or university backs down or loses in court. So speech and due process rights, while under threat, tend to be sustained when asserted.
Privacy rights are articulated well in the U.S. Constitution and long-standing federal law, but the post-terrorism wave of legislation has presented serious threats to the rights of students, especially those from other countries. The courts have not been as supportive of privacy rights as they have of speech and due process rights. The recent Supreme Court decision permitting routine drug tests for public school students who wish to participate in extracurricular activities, while not directed to college students, indicates how tentative our privacy rights are.
While private schools are not literally subject to constitutional requirements, the courts have held them to similar standards for other reasons. Free speech and due process rights do exist for most private college students. Privacy rights are about as weak in private schools as they are in public colleges and universities.
The record appears to indicate that colleges and universities need to rethink speech and behavior codes. Rather than try to ban or control offensive speech, schools should pursue strategies that bring repugnant ideas out into the open where they can be challenged intellectually. Besides the fact that thought control doesn't work, it is also illegal whenever it is subjected to judicial review.
Neiger et al. (1998, pp. 201-204) proposed a "model policy" for "constitutionally sound" codes. It would ban:
fighting words or physical behavior "directed at a specific person or group of persons" and (not "or") is likely to result in violence behavior or campus demonstrations which "materially" interfere with others' work or rights, or the operation of the university behavior that threatens to interfere with an individual's safety or participation in college events
From the review outlined earlier, it appears that the first proposal would withstand court review but the other two suggestions contain criteria that are overly ambiguous.
Calleros (1997) developed an approach to objectionable behavior without sacrificing free speech. He advocated that university administration must articulate its rejection of bias, discrimination and hatred so that offending students know they are in opposition to the institution's philosophies, but that the offenders should not be disciplined for their ideas. Calleros delineated a curriculum for training university personnel to engage in constructive conversations with members of the campus community, and for interacting with offenders without violating their rights. The curriculum consists of a series of true vignettes involving hate speech and behaviors, and asks participants to determine constitutionally acceptable responses within the context of an institution that abhors hate speech. Adoption of the curriculum might require preparation of group facilitators in constitutional issues related to campus speech.
Schools should also define and punish acts that target specific individuals or destroy property, as distinguished from thoughts and words. Given the consistent record of the courts overturning colleges' and universities' disciplinary decisions, it appears self evident that schools should adopt due process standards that are followed in legal proceedings.
For students (and faculty) who encounter speech codes or procedures to implement them, the best strategy appears to be to go public. According to the record reviewed here, publicizing these procedures and/or bringing them to court, where basic protections are more reliable, are effective strategies.
With regard to privacy, these are difficult times. Social Security Numbers should not be used as student identification numbers. SSNs should not be posted with grades or used in ways that can jeopardize students' privacy or property. Other privacy rights are under attack in the post-terrorism reaction period. The USA/Privacy Act will be tested in the courts, and hopefully many of its most odious provisions will be overturned. Maybe the best advice for students is to be careful with their personal information. One protection, developed in the private sector and recently adopted by the University of Pennsylvania, is to designate a "chief privacy officer" with responsibility for protecting students' privacy throughout the campus, including health, financial and admissions-related data (Schwartz, 2002).
For the most part, the use of Internet resources does not change student rights. Speech rights are no less protected in email or web access than when exercised verbally or in print. There are some issues that arise with regard to the nature of electronic communications but the general guideline is to avoid violating student rights while accommodating the special circumstances of the Internet. Privacy on the Internet remains a thorny issue, but colleges and universities should take steps to protect users' privacy, avoid ambiguous rules, protect sensitive records from easy access (such as students' transcripts), involve the full campus community in Internet privacy discussions, and inform all affected persons when electronic privacy is disrupted in any way (AAUP, 1997).
American Association of University Professors [AAUP] (2002, May). Academic freedom of individual professors and higher education institutions: The current landscape. Retrieved June 17, 2002, from www.aaup.org/com-a/aeuben.htm
AAUP (1997). Academic freedom and electronic communications. Retrieved June 17, 2002 from http://www.aaup.org/statements/spchstate/statelec.htm
American Civil Liberties Union [ACLU] (2002a, May 7). In Letter to UC Berkeley Chancellor, ACLU opposes suppression of pro-Palestinian student protest. Retrieved June 24, 2002, from http://www.aclu.org/news/2002/n050702d.html
ACLU (2002b, May 28). Federal court finds University of IL violated rights of students and faculty in mascot debate. Retrieved June 24 2002, from http://www.aclu.org/news/2002/n052802d.html
ACLU (2002c, April 10). In the wake of new anti-terror law, NYCLU launches statewide campaign to inform college students of their rights to privacy of records. Retrieved June 17, 2002, from www.aclu.org/news/2002/nyclu_letter_0409.pdf
ACLU (2000d). ACLU press releases. Retrieved June 28, 2002, from www. aclu.org/news/2002/pressind.html
ACLU (1996). ACLU briefing paper: Hate speech on campus. Retrieved June 17, 2002, from http://www.aclu.org/library/pbp16.html
Associated Press (2002, April 28). Universities struggle with free speech, hate speech. Retrieved June 17, 2002 from http://www.freedomforum.org/templates/ document.asp?documentID=16143
Bush and free speech at OSU. (2002, July 8). The Nation, p. 7.
Calleros, C.R. (1997). Preparing for the worst - and striving for the best: Training university employees to respond clearly, constructively, and constitutionally to hateful speech on campus. Journal of Law and Education, 26(4), 41-68.
Center for Individual Rights [CIR] (1999, May 12). Mass v. Cornell University. Retrieved June 27, 2002, from www.cir-usa.org/recent_cases/maas_v_cornell.html
Electronic Privacy Information Center [EPIC] (2002, June 19). Privacy laws by State. Retrieved June 27, 2002, from http://www.epic.org/privacy/consumer/states.html
Foundation for Individual Rights in Education [FIRE], (2002). Due process. Retrieved June 28, 2002, from http://www.thefire.org/index.php/process.php3
Greenhouse, L. (2002, June 21). Supreme Court finds law on educational privacy isn't meant for individuals. New York Times, p. A15.
Kors, A.C. & Silverglate, H.A. (1998). The shadow university: The betrayal of liberty on America's campuses. New York: Free Press.
Namazi, N. and Cahill, J.H. (1994). University hate speech codes: A necessary method in the process if eradicating the universal wrong or racism. Truro Law Review, 10(2), 561-592.
Neiger, J.A., Palmer, C.J., Penney, S.W. and Gehring, D.D. (1998). Addressing hate speech and hate behaviors in codes of conduct: A model for public institutions. NASPA Journal, 35(3), 193-206.
Palmer, C.J., Penney, S.W., Gehring, D.D. and Neiger, J.A. (1997). Hate speech and hate crimes: Campus conduct codes and Supreme Court rulings. NASPA Journal, 34(2), 112-122.
Privacy Rights Clearinghouse (2001, June 21). College and university privacy issues: Social Security Numbers and smart cards. Retrieved June 27, 2002, from www.privacyrights.org/ar/college-privacy.html
Schwartz, J. (2002, August 4). Privacy vs. security on campus. New York Times, wk 3.
Student Press Law Center [SPLC] (1998a). Student media guide to Internet law (part 1). Retrieved June 28, 2002 from http://www.splc.org/legalresearch.asp?id=22
SPLC (1998b). Student media guide to Internet law (part 2). Retrieved June 28, 2002 from http://www.splc.org/legalresearch.asp?id=23
SPLC (1995). Private schools and press freedom. Retrieved June 26, 2002 from http://www.splc.org/legalresearch.asp?id=8
U.S. Bureau of the Census (2002). Attendance status of college students 15 years old and over, by age, sex, year and type, October, 2000. Retrieved June 28, 2002, from http://www.census.gov/population/socdemo/school/ppl-148/tab10.txt
Walker, S. (1990). In defense of American liberties: A history of the ACLU. New York: Oxford.
Copyright © 2002 Daniel Weisman
Civil Liberties of Students in Higher Education, Issues in Teaching and Learning, 1:1, 2002.
Content may be reproduced if this statement is included.