First Amendment Rights in College

By Emma Brillhart and Lauren Sampson

December 7th, 2012

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This article appeared in the Port Side‘s December 2012 print issue.

Do students deserve to enjoy the same First Amendment speech protections on-campus as they do off?

Pitzer students have recently taken actions to revise official policies to protect their freedom of speech and inform the Claremont community that these protections are not niceties but are, in fact, the law. These students are leading the charge to make sure that Pitzer does its best to ensure the protections.

Free speech rights for students—ranging from elementary school to college— have often been discussed by politicians and courts over the last several decades. Decisions on the matter have been split, with some cases holding that schools can regulate and limit speech rights for students, and others deciding that students deserve the same constitutional protections at school as they do anywhere else.

California has fallen into the latter group; the Leonard Law, passed in 1992, states that all private colleges and universities in the state must recognize the same First Amendment rights for students on-campus that they would enjoy off-campus.  However, all of the Claremont Colleges currently violate some of the students’ First Amendment rights in their policies — at least according to the Foundation for Individual Rights in Education (FIRE).

All five of the Claremont undergraduate campuses currently have a “yellow light” rating from FIRE, a non-profit and non- partisan organization which, according to its mission statement, aims “to defend and sustain individual rights at America’s colleges and universities,” including the freedom of speech. A “yellow light” rating means that the school has at least one policy on the books that FIRE finds obstructive to students’ individual rights due to wording or content.

Students at Pitzer College are currently pushing to implement changes in the wording of specific policies in their student handbook, such as those that call for administrative review of student postings on campus and changing the definition of “bias-related incidents” to include greater specificity. These changes would allow Pitzer’s ranking to be upgraded to a “green light” FIRE ranking, meaning that the college has no policies that the organization feels could limit student speech rights on campus. For the most part, the changes proposed would not significantly affect the content or meaning of the policies affected, but would seek to make them more narrowly constructed, limiting potentially selective enforcement of regulations by the administration based on the particular content of student speech. This initiative, proposed by Jon Rice PZ ‘13 and Sebastian Aguiar PZ ‘14, was endorsed by the Pitzer Senate at the end of October.

“We realized that there is risk of a First Amendment violation in the current language, and [that] everyone, including the administration, would benefit from more explicitly rights-protecting language,” said Aguiar.

Aguiar added that Pitzer would be the first college in California to achieve “green light” status, and would become one of only fifteen other four-year colleges and universities across the country that FIRE believes fully protect student speech rights.

Moya Carter, Dean of Students at Pitzer, is one of the administrators involved in the process of deciding whether or not to implement these changes following the endorsement of Pitzer’s Student Senate. The changes were discussed at a College Council meeting on November 1; the next step for Carter is to continue the discussion with the Student Senate Chair.

Carter supports free speech on campus but is not convinced that a “green light” ranking from FIRE would be of serious importance to Pitzer as an institution.

“We have an engaged, vibrant, vocal and communicative student body at Pitzer College that will remain that way regardless whether we receive a green light ranking or not,” said Carter.

She also voiced the concern that fewer restrictions could open the door for less- than-civil discourse on campus.

“I want Pitzer students to engage in difficult conversations in and out of the classroom and have the ability to express themselves. But not at the expense of others who may feel targeted, threatened, humiliated, or afraid. Every institution must come together and make a decision on what makes sense for their community,” said Carter. Despite these concerns, she said that she is interested and willing to explore the proposal further.

Some students have not noticed any limitations of their on-campus speech rights.

“I don’t think Pitzer limits speech. Student-Talk is a prime example of this. It’s the ultimate manifestation of free speech at this school,” said Ruth Sampson PZ ‘14. “There is a social pressure to curb your beliefs sometimes, but I think that’s generally just a part of being in a group of people. You’re always going to have social pressure to appeal to your environment through speech or through other action.”

Others feel that Pitzer is fully within its rights to restrict speech that it finds objectionable.

“I think that if it’s a public university… there shouldn’t be any difference [in the speech rights students enjoy on-campus versus off]. But private institutions should be able to do whatever they want. If people don’t like it, then they can go to another institution,” said Ben Levine PZ ’14.

He does acknowledge that despite these feelings, he does not feel any institutional limitations on his speech rights.

“On the spectrum of the United States I am pretty liberal, but on the spectrum of Pitzer, I would probably describe myself on the more conservative side. Any kind of speech limitation is because I feel uncomfortable about how my peers would react to what I said,” said Levine.

Still others share some of Moya Carter’s concerns about how the proposed changes will affect civil discourse on campus.

“In any community there should be a certain level of respect. So if someone is saying something or expressing something that is putting someone else in danger, or disrespecting someone or harassing someone, that should not be allowed,” said Leora Paradise PZ ’14.

However, Paradise recognizes that there are some visible limitations on student speech at Pitzer.

“Certain flyers will get torn down. I think sometimes [it’s] students, but sometimes that might be staff. It definitely is only certain messages that are approved.  If it’s too radical, or it doesn’t go with whatever the mainstream view of acceptable messages is, then it won’t be tolerated,” said Paradise.

Aguiar does not feel that concerns about potential harassment are well-founded, and emphasizes that the proposed changes are not drastically different from current campus policy.

“The 1992 CA Leonard Law mandates that non-religious private schools cannot suppress the speech of students. Period. ‘Offensive’ speech is protected, with three exceptions: Incitement of violence, fighting words and harassment,” said Aguiar. Students being singled out and made to feel uncomfortable for any reason is already prohibited under State and Federal law. “The problem is that 5C codes of conduct feature vague language that directly conflicts with California law and confers undue power to administrators… Giving school administrators license to determine what is offensive is a legitimate threat to student discourse.”

Aguiar adds that the students proposing the changes consulted with constitutional lawyers to determine the updated wording.

It remains to be seen if the changes will end up making it into the Pitzer Student Handbook. Aguiar is optimistic, saying that the meeting with the College Council on November 1 went well, and that the changes proposed seemed to be received warmly.

Aguiar also encouraged students on the other campuses to push for similar initiatives at their schools.

“Other schools certainly should demand their First Amendment rights. Students don’t worry much about censorship until it happens to them — it’s better to use the precautionary principle and verify that college rules are in line with the Constitution, as mandated by Leonard’s Law,” said Aguiar.

Overall, Aguiar emphasizes that this proposal is really about protecting students’ Constitutional rights.

“This is not about getting a FIRE certification; their lawyers are merely a tool which Senate used to help draft a speech code that is legal. The current [code] is illegal and puts students at risk,” said Aguiar. “Our hope is that nobody will be disciplined or intimidated for any expression protected under the Constitution. Free expression is the cornerstone of academic freedom, and we want to make that explicit.”

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Tim Reynolds is the Editor-in-Chief of the Port Side. A sophomore English major at Pomona College, Tim can be found working with students in Pomona's Writing Center. Email him at editor@claremontportside.com