us-constitution fourteenth-amendment first-amendment
To what extent can a public college regulate the speech of its students?
<p>My community college's "Student Rights" webpage states that the College District will not tolerate any discriminatory behavior on the part of its students. Now, I'm not advocating discrimination, but it seems to me that, in the context of speech, such a broad anti-discrimination policy would be deemed invalid by the courts. While attending college is a choice, public colleges are run by a government.</p>

<p>The college can certainly chastise a student. My question is not whether such a student can be required to refrain from discriminatory behavior as a condition of being allowed to hold a student office or a staff/faculty position; rather, it is whether the College can take disciplinary measures against a student who passes up such opportunities.</p>

<p>Content-based restrictions on speech cannot be imposed by the government, because of the 1st Amendment. This includes speech deemed to be "hate" or "discriminatory". Examples: <a href="https://law.justia.com/cases/federal/district-courts/FSupp/721/852/1419700/" rel="nofollow noreferrer">Doe v. University of Michigan</a>, 721 F. Supp. 852. The university prohibited</p>

<blockquote>
  <p>Any behavior, verbal or physical, that stigmatizes or victimizes an
  individual on the basis of race, ethnicity, religion, sex, sexual
  orientation, creed, national origin, ancestry, age, marital status,
  handicap or Vietnam-era veteran status, and that...Creates an
  intimidating, hostile, or demeaning environment for educational
  pursuits, employment or participation in University sponsored
  extracurricular activities.</p>
</blockquote>

<p>The court invalidated this restriction because</p>

<blockquote>
  <p>The Supreme Court has consistently held that statutes punishing speech
  or conduct solely on the grounds that they are unseemly or offensive
  are unconstitutionally overbroad</p>
</blockquote>

<p>In <a href="https://law.justia.com/cases/federal/district-courts/FSupp/774/1163/1425792/" rel="nofollow noreferrer">UWM Post v. Board of Regents of the University of Wisconsin</a>, 774 F. Supp. 1163, the court struck down a similar governmental violation of the 1st Amendment:</p>

<blockquote>
  <p>The university may discipline a student in non-academic matters in the
  following situations:</p>
  
  <p>For racist or discriminatory comments, epithets or other expressive
  behavior directed at an individual or on separate occasions at
  different individuals, or for physical conduct, if such comments,
  epithets or other expressive behavior or physical conduct
  intentionally:</p>
  
  <ol>
  <li>Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or
  individuals; and 2. Create an intimidating, hostile or demeaning
  environment for education, university-related work, or other
  university-authorized activity.</li>
  </ol>
</blockquote>

<p>saying that</p>

<blockquote>
  <p>the suppression of speech, even where the speech's content appears to
  have little value and great costs, amounts to governmental thought
  control. An individual instance of thought control may not appear to
  impose great costs on society. However, if a balancing test is used
  there are likely to be many such instances. Taken as a whole, these
  instances will work to dissolve the great benefits which free speech
  affords.</p>
</blockquote>

<p>The (state) university in <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/280/357/2501172/" rel="nofollow noreferrer">Bair v. Shippensburg University</a>, 280 F. Supp. 2d 357 had a rule that</p>

<blockquote>
  <p>The expression of one's beliefs should be communicated in a manner
  that does not provoke, harass, intimidate, or harm another.</p>
</blockquote>

<p>and the court yet again reminded us that</p>

<blockquote>
  <p>regulations that prohibit speech on the basis of listener reaction
  alone are unconstitutional both in the public high school and
  university settings.</p>
</blockquote>

<p><a href="https://www.courtlistener.com/opinion/1451735/dejohn-v-temple-university/" rel="nofollow noreferrer">DeJohn v. Temple University</a>, 537 F.3d 301 centers around a rule that</p>

<blockquote>
  <p>all forms of sexual harassment are prohibited, including ...
  expressive, visual, or physical conduct of a sexual or
  gender-motivated nature, when ... (c) such conduct has the purpose or
  effect of unreasonably interfering with an individual's work,
  educational performance, or status; or (d) such conduct has the
  purpose or effect of creating an intimidating, hostile, or offensive
  environment.</p>
</blockquote>

<p>The consequence of this rule was that a student "felt inhibited in expressing his opinions in class concerning women in combat and women in the military".</p>

<p>Under the university policy, </p>

<blockquote>
  <p>a student who sets out to interfere with another student's work,
  educational performance, or status, or to create a hostile environment
  would be subject to sanctions regardless of whether these motives and
  actions had their intended effect. As such, the focus on motive is contrary to
  <a href="https://supreme.justia.com/cases/federal/us/393/503/" rel="nofollow noreferrer">Tinker's</a> requirement that speech cannot be prohibited in the absence of a tenable threat of disruption</p>
</blockquote>

<p>Moreover,</p>

<blockquote>
  <p>the policy's use of "hostile," "offensive," and "gender-motivated" is,
  on its face, sufficiently broad and subjective that they "could
  conceivably be applied to cover any speech" of a "gender-motivated"
  nature "the content of which offends someone."
  This could include "core" political and religious speech, such as
  gender politics and sexual morality.
  Absent any requirement akin to a showing of severity or pervasiveness
  that is a requirement that the conduct objectively and subjectively
  creates a hostile environment or substantially interferes with an
  individual's work the policy provides no shelter for core protected
  speech.</p>
</blockquote>

<p>This is a matter similar to Roe v. Wade: it's settled law, and yet government agencies still seek to circumvent the law by constantly re-wording the restriction.</p>
