The First Amendment’s application to public university students: an explainer

Free speech on university campuses is a perennially hot topic, perhaps most recently reflected in protests about the Israeli-Palestinian conflict at places like Ball State University, Harvard, and Columbia. This debate has also arisen in the context of offensive speech, harassment (under Titles VI and IX), bias response teams, and speaker policies. In response to each event, the public, commentators, and scholars have questioned the appropriate boundaries of speech in the college environment, and, what, if any, constitutional protections exist.

So how does the First Amendment apply to students in the context of public universities? The question seems clear, but the answer is surprisingly murky. Although the court has carved out a First Amendment framework for K-12 schools, it has not done so for universities, and the lower federal courts are in stark disagreement on this issue. This SCOTUS explainer takes a deep dive into what, exactly, is going on here, and how this might affect current (and future) events. 

Tinker and its K-12 progeny

Let’s go back to where it all began. In 1969, the court decided Tinker v. Des Moines Independent Community School District. Tinker was centered around a group of middle and high school students who wore black armbands to their schools in protest of the Vietnam War. Each of the students were sent home and suspended from school until they would agree to come back without wearing the armbands. The students and their parents subsequently sued the school district, claiming that their First Amendment rights had been violated when school officials “banned and sought to punish [the students] for a silent, passive expression of opinion.”

The court ruled in favor of the students. In doing so, Justice Abe Fortas wrote that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” At the same time, the court emphasized that the speech rights of students may be limited due to “the special characteristics of the school environment.” In recognition of this, the court set forth a standard allowing for the restriction of student speech whenever school officials may reasonably expect that the speech would cause “substantial disruption of or material interference” with school activities.

After Tinker, the justices have considered only a handful of other K-12 student speech cases fleshing out this area of law. The first notable one was Bethel School District v. Fraser, decided in 1986, in which the court distinguished the political speech at issue in Tinker and held that the First Amendment allows schools to restrict “vulgar and lewd speech” (such as “a sexually explicit monologue directed towards an unsuspecting audience of teenage students”) because it might “undermine the school’s basic educational mission.”

Next up was the 1988 case of Hazelwood School District v. Kuhlmeier, where the court upheld a high school principal’s decision to withhold two articles (one about students’ pregnancies and another about divorce) from the school newspaper. In doing so, the court explained that the standard articulated in Tinker does not apply to speech sponsored by the school itself, such as a school newspaper, “so long as [the school’s] actions are reasonably related to legitimate pedagogical concerns.”

Then, in 2007, the justices decided Morse v. Frederick, where they held that school officials may restrict student speech when it can be “reasonably viewed as promoting illegal drug use.” That case involved a high school student who held up a banner with the words “BONG HiTS 4 JESUS” while the Olympic Torch Relay passed by his high school. The student was suspended for 10 days for advocating the use of illegal drugs while attending a school-supervised event. The majority acknowledged Tinker’s warning that student speech cannot be restricted simply to avoid the discomfort that may come from an unpopular viewpoint or because school officials have an unreasonable fear of disturbance. But ultimately, the court concluded that the danger of student drug abuse was sufficient to overcome any such First Amendment concerns.

And most recently, the court decided Mahanoy Area School District v. B.L., which posed the question of whether schools, under Tinker, may restrict students’ “off campus” speech. This case arose after a high school student failed to make the varsity cheerleading team or get the softball position that she preferred. In response, she posted a picture on Snapchat with her middle finger raised and the caption “Fuck school fuck softball fuck cheer fuck everything.” After her cheer coaches learned of the post, the student was suspended from the team for a year.

Justice Stephen Breyer, writing for the majority, said that the ability of schools to regulate student speech did not automatically disappear simply because the speech occurs off campus. Ultimately, however, the court ruled in favor of the former cheerleader. The majority pointed to three factors that led to this conclusion: (1) the speech was off-campus; (2) there was no evidence in the record of a “substantial disruption” that rose to the level required by Tinker; and (3) the school’s argument about concern for such things as “team morale” were not supported by the record, nor does an “undifferentiated fear or apprehension” justify limiting First Amendment protections.

So here is what we know when considering student speech in the K-12 context. First, in line with Tinker, schools have the authority to regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” due to the “special characteristics of the school environment.” Second, there are at least three categories of speech that schools may regulate: (1) indecent or vulgar speech (you know it when you see it?); (2) speech that promotes illegal drug use; and (3) speech that may be reasonably viewed as that of the school itself, like a school-sponsored newspaper. Finally, and perhaps least helpfully, although schools may retain some ability to regulate students’ off-campus speech in certain circumstances (like bullying, threats, and use of school computers) the exact parameters of these circumstances have not been well defined.

Higher ed

As you probably noticed, all of these cases related to K-12 schools. The speech rights for college students are even less clear – at least in part because cases concerning this issue have been relatively sparse.

Just three years after its decision in Tinker, the court decided Healy v. James, which dealt with a challenge to Central Connecticut State College denying official recognition to a group of students who were attempting to form a local chapter of Students for a Democratic Society. Justice Lewis Powell, writing for the majority, favorably cited to Tinker. He then stated that “the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” Unfortunately, he provided no further elaboration.

The next year, the court issued a per curiam opinion in Papish v. Board of Curators, in which it held that the First Amendment did not permit the expulsion of a graduate student for distributing a newspaper on campus containing “indecent speech.” In disagreeing with the lower court’s decision, the majority cited Healy and Tinker to support the idea that the First Amendment applies on school campuses. Therefore, the court explained, universities may not restrict speech or “the mere dissemination of ideas … in the name alone of ‘conventions of decency.’” At the same time, the court acknowledged there was latitude for a university to exercise “its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination.”

Circuit splits

Understandably, this has left the circuit courts somewhat divided. At least four of them have applied Tinker and its progeny to cases involving public university students. But the nature of this application has varied significantly. 

In January, the United States Court of Appeals for the 11th Circuit granted a stay of a district court injunction in Damsky v. Summerlin. That case involves a University of Florida law student who was expelled for posts he made on X, including that “Jews must be abolished by any means necessary.” Citing Tinker, the 11th Circuit sided with the university and held that it was likely to show that Damsky’s speech constituted a “material disruption” of classwork because members of the university community could reasonably interpret the posts as threatening others and promoting “extralegal violence.” Judge Kevin Newsom dissented and explained that Damsky’s speech, although “repugnant and hateful,” did not rise to the level of a “true threat” (an unprotected category of speech). He also expressed skepticism that Tinker should apply at all in the university context. But Newsom acknowledged that the Supreme Court’s guidance on this issue is unclear.

The United States Court of Appeals for the 10th Circuit has also applied Tinker in a university setting. In one case, a student was expelled after several tweets about his ex-girlfriend were found to violate the school’s sexual harassment policy. The 10th Circuit cited language from the Healy decision as support for the conclusion that the “material disruption” test does indeed apply in the university context.

The United States Court of Appeals for the 6th Circuit also applied Tinker and its related cases to a situation involving a graduate-level counseling student who asked for a gay client to be referred to another student after informing her supervisors that her religion “prevented her from affirming a client’s same-sex relationships as well as certain heterosexual conduct.” Although relying on the K-12 framework, the 6th Circuit recognized that the Tinker standard needs to take into account the different level of maturity that exist in the context of higher education versus a high school. For example, while it may be permissible for a high school principal to not allow a story about teenage pregnancy in the school newspaper, the same is likely not true in the college context.

And last year, the United States Court of Appeals for the 1st Circuit applied Tinker in Doe v. University of Massachusetts, a case which involved statements made by a male “resident advisor” to four female colleagues that were found (by a university committee) to constitute sexual misconduct. In Doe, the court observed, like the 6th Circuit, that Tinker should apply differently in the university context. The 1st Circuit noted that most university students are over 18 years old and so their maturity level undermines the need to protect sensitive students from being exposed to harmful speech.

Other courts have been more skeptical that the Tinker standard is appropriate to apply in a university setting. In Oyama v. University of Hawaii, for example, the United States Court of Appeals for the 9th Circuit declined to do so for college students. The 9th Circuit listed a few reasons why, including less concern for such students’ maturity and the importance of academic freedom in the university environment. The United States Court of Appeals for the 3rd Circuit has taken a similar position, explaining in one case that “[p]ublic universities have significantly less leeway in regulating student speech than public elementary or high schools.” At the same time, the 3rd Circuit acknowledged that it is not entirely clear what standard should apply to universities. But it insisted that what is clear is that Tinker and its progeny “cannot be taken as gospel in cases involving” universities and any applicability of these cases should be “scrutinized carefully, with an emphasis on the underlying reasoning of the rule to be applied.”

The Alito footnote

As noted above, the Supreme Court has not spoken on this issue, which is why the circuit courts appear so confused on it. That said, in his concurrence in Mahanoy, Justice Samuel Alito did provide some insight into at least his thinking on speech in the university context. Specifically, in a footnote, and without further explanation, Alito remarked that “the age, independence, and living arrangements” of university students are reasons why the regulation of their speech perhaps should be treated differently than younger students. But only Justice Neil Gorsuch joined his opinion.

So where does this leave us?

To answer that question: Pretty confused.

Nevertheless, let’s consider how this might apply in the context of recent events like the campus protests mentioned at the article’s start. Under Healy, we know that the First Amendment grants university students (seemingly) robust speech rights. And, as things stand currently, it appears that lower courts are going to apply some version of the Tinker standard to the higher education context. Assuming Tinker applies, then the big question is whether the protest/speech is disruptive enough to satisfy that standard. If the disruption affects classroom activities or other official school events, the answer is likely yes. If, on the other hand, a protest takes place on a weekend or in a location where it won’t interfere with class activities, the university may have a harder time (legally) shutting it down. Of course, sometimes the protests do not directly cause a disruption, but the reaction to them does – this is where the facts will prove dispositive, based on the nature of the disruption and how the university’s academic mission was threatened.

Like in certain other areas of law, it would make a good deal of sense for the court to step in when it finds the right case. Student speech controversies on university campuses are not going away, and university administrators, college attendees, and lower courts could all use some guidance in what is an often fraught First Amendment environment.