Know Your Rights - First Amendment (Higher Ed)

To determine what free speech protections you have, it is important to first identify whether your college or university is public or private. If you’re not sure whether your institution is public or private, you can check by searching for your school at: nces.ed.gov/globallocator/.

Throughout this guide, note whether the section applies to your school.

Generally, no. Private institutions generally are not bound by the First Amendment. So, private school students do not have the exact same rights to freedom of speech as students in public institutions. Rather, a private school student’s free speech rights are generally as outlined/described in the institution’s related rules and guidance. To locate your school’s rules and policies, you can try searching “code of conduct” on your school’s website or reaching out to your school’s administration, such as your office of student affairs or your registrar.

It depends. Your private college or university can discipline you for your speech if it determines that the speech violates the university’s student conduct rules, or other established rules and guidelines. You can find the rules for your school’s disciplinary process in the student code of conduct. You should read through the code and any additional policies related to internet use, free expression, event coordination, and bias/harassment.

Private colleges and universities must substantially comply with the rules and procedures outlined in these policies when they investigate students or student groups for any conduct, including speech, that is alleged to have violated school rules. “Substantial compliance” means that even if the school does not follow its own rules completely – for example, failing to send notice by mail or shortening notification timelines – the determination may still be upheld by a court. Where the private school imposes discipline, courts look at whether that punishment was so disproportionate to the misconduct, in light of all the circumstances, as to be shocking to one’s sense of fairness. It is not enough for the punishment to be severe; the discipline imposed must also contravene the public interest and the policies reflected by the private institution’s own mission.

Private institutions are required to substantially comply with their own policies regarding the formation and shutting down of student groups. Your code of conduct, student activities policies, and free expression policies should outline the process for formation and revocation of student groups.

The First Amendment protects the rights of students in public colleges and universities to express their opinions, even if others disagree with the views expressed or the form of expression. Spoken and written words are not the only things that are protected – the First Amendment protects other expressions like symbolic clothing, sit-ins, passing out flyers, and picketing.

Public institutions are still allowed to set reasonable, viewpoint-neutral, rules related to the time, place, and manner of student speech. For example, a speech or rally that might be permissible in a park may be restricted if made in the reading room of a library. They can also restrict speech that directly calls for immediate, lawless action, such as threatening or presenting “substantial disruptions” to campus such as blocking entryways and exits for buildings on campus, causing property damage, and endangering the safety of others. “Threatening” speech must be clear, unambiguous and immediate, to be restricted; political hyperboles do not rise to the level of true threats.

Yes. Students have a constitutional right to engage in peaceful marches and demonstrations, wear symbolic clothing, coordinate boycotts, and any other expressive actions which do not substantially disrupt the campus environment. Some examples of substantially disruptive behavior include calling for immediate, lawless action, blocking entryways, preventing classes from continuing. etc. (More examples are discussed in the general First Amendment section above).

It depends. As with private universities, your public college or university can discipline you for your speech if it determines that the speech violates the university’s student conduct rules, or other established rules and guidelines. However, that investigation and determination must adhere, first and foremost, to First Amendment protections (outlined in the general First Amendment section above), as well as to the rules outlined in the university’s student code of conduct – so, knowledge of your college or university’s code of conduct and/or policies is essential.

Before a public institution disciplines a student or student group, such as by expelling the student or revoking official recognition from a group on campus, it must provide the student or student group with “due process.” This includes providing students with the names of witnesses against them, an opportunity to present a defense, and the results and findings of the hearing. Unless otherwise stated in their own rules, public institutions are not required to provide legal representation for students, allow them to bring a legal representative, allow students or student groups to cross-examine witnesses, or record the hearing.

Public institutions cannot deny recognition to student groups for being associated with a controversial organization or for having controversial opinions. Public institutions cannot prohibit or limit recognized student groups from communicating with students, faculty, and administration. Public colleges and universities also cannot deny funding, resources, or services that are generally accessible because they disagree with the group’s viewpoint.

Public institutions are allowed to deny recognition or otherwise stop student group activities when those activities violate reasonable campus rules, interrupt classes, or substantially interfere with the opportunity for students to learn. This is a high bar. Public universities cannot shut down a student group without having substantial evidence to show that their activities break campus rules or cause substantial disruption. Vague concerns about disturbances or security concerns are not enough to justify shutting down a group.

The Family Educational Rights and Privacy Act (FERPA) prohibits institutions that receive funding from U.S. Department of Education programs – which generally covers both public and private colleges and universities – from disclosing many types of student information without your consent if you are over 18. However, the law allows a school to share “directory information” like a student’s name, address, telephone number, degrees, awards, and participation in officially recognized activities and sports. Students should be aware of other non-university-based sources which may display or suggest a student’s group affiliation, including social media groups, publicly available chats and servers, wiki sites, etc.

Student codes of conduct often extend to off-campus behavior for both public and private university students. Whether you are engaging in social media activism or attending in-person actions, you should be aware that there is often no clear on/off-campus distinction with respect to your institution’s ability to discipline you for off-campus activities. In the past, courts have permitted universities to punish students for activities like hosting unauthorized events and posting threats on social media while off-campus.