LockersMany student discipline matters in public schools involve speech, be it joking threats by the student, outrageous bullying on social media, epithets or hate speech, or clothing containing messages or symbols that violate school rules.  Because they involve speech, these discipline cases can raise substantial First Amendment concerns.

Some view student speech as less valuable

The California Constitution guarantees that all public school students and staff have an inalienable right to attend campuses which are “safe, secure and peaceful.” Both the state and federal government have enacted a multitude of laws aimed at protection of children, schools, educators and staff; so many that we could not possibly cover them all in this piece

Although many schools face tight budget constraints these days, schools can, within their resources, take steps to promote safety. This is not an exhaustive discussion of all the laws and legalities for maintaining a safe school. The following are just a few highlights of the laws and some ideas for what even the most financially strapped schools can do at the local level.
Continue Reading Understanding the Legalities and Practicalities of School Safety

College-Quad.pngThanks to movies like Animal House and PCU, the word “fraternity” conjures up images of University sanctioned bastions of partying and pranks.  The classic Hollywood formula often involves comedic attempts to win back University approval after the fraternity’s antics raise the ire of administration.  What John Landis probably didn’t envision is a University’s refusal to sancion a sorority or fraternity because they require members to devote themselves to traditional Christian values, but that is exactly the story that unfolded at San Diego State University recently.

Alpha Delta Chi and Alpha Gamma Omega, a Christian sorority and fraternity, required its members to have “personal acceptance of Jesus Christ as Savior and Lord,” “active participation in Christian service,” and “regular attendance or membership in an evangelical church.”  Officers of the sorority and fraternity were required to profess beliefs and practices “consistent with orthodox Christian beliefs.”

The sorority and fraternity sought official recognition from the University which would bring with it numerous benefits including University funding, use of the University’s name and logo, access to campus office space and meeting rooms, free publicity in school publications, and participation in various special University events.  Officially recognized fraternities and sororities can be granted access to recruitment fairs, leadership conferences, and social activities.

The sorority and fraternity applied for recognition on numerous occasions, but were denied each time because they required their members and officers to profess a specific religious belief.  These membership requirements conflicted with San Diego State’s nondiscrimination policy which the University requires all officially recognized student organizations to include in their bylaws.   That policy states that on-campus status will not be granted to any student organization that restricts membership or eligibility to hold officer positions on the basis of race, sex, color, age, religion, national origin, sexual orientation, disability, or other protected category. The University’s policy reflects the California State University system’s Non-Discrimination Regulation.

Although the sorority and fraternity were denied official recognition, they are still free to hand out flyers and post signs to recruit new members in areas open to all groups, recognized or not, such as the “free speech steps” of the student union and the wall next to the University’s bookstore. They could also use the University’s rooms for meetings and events, but not for free or at reduced prices, as officially recognized groups may do.

The sorority and fraternity brought suit against the University alleging the non-discrimination policy for sanctioned student groups infringed on their rights of Free Speech and Association, Free Religious Exercise and Equal Protection under the First and Fourteenth Amendments of the U.S. Constitution. After the district court granted summary judgment in favor of the University on all counts, the sorority and fraternity appealed. 

Last year, in Christian Legal Society Chapter of the Univ. of Calif. Hastings College of Law v. Martinez, the U.S. Supreme Court held that a public University does not violate the Constitution when it conditions official recognition of a student group, and the attendant use of school funds and facilities, on the organization’s agreement to open eligibility for membership and leadership to all students.  This was referred to as an “all-comers policy” because it prohibited all membership restrictions. The Supreme Court, however, expressly declined to address whether this would extend to a narrower policy that merely holds that membership and leadership cannot be restricted to students of specified races, genders, religion, or other protected classification.  

Continue Reading University’s Nondiscrimination Policy Does Not Violate Religiously-Exclusive Student Organizations’ Freedom Of Speech Or Association, Free Religious Exercise, Or Equal Protection

students-on-campus.JPGMany public universities and colleges in California want to establish policies regarding what kind of speech can occur on campus.  But doing so can be hazardous.  Imagine you are tasked with establishing a policy that governs organized student speech on your campus.  What would be reasonable?

Without a lot of legal guidance, you might propose the following: being careful, you might say, “none of the campus is considered any kind of ‘public forum’ for speech activities.”  But, to be generous, you might also say, “all of the walkways surrounding the school library will be considered a free speech zone for students and outsiders.”  The area is not heavily trafficked, and makes up only a small portion of the campus, but you expect that at least some students and other passersby will be able to see demonstrations or activities in the area specified.  Again being generous, you write, “student organizations and outside groups must apply to use the free speech zone for demonstrations or distributing literature, and the college guarantees it will respond to the applications in fifteen (15) days, and will only deny permission for a proposed demonstration if it is manifestly inappropriate for an academic environment as determined by the Chancellor or by his or her designees.” 

This campus policy doesn’t sound crazy.  And it certainly does not create a police state or Orwellian dystopia.  After all, it permits even demonstrations that criticize the college or its policies, since most people would agree such demonstrations would not, if reasonable, qualify as “manifestly inappropriate for an academic environment.” 

Continue Reading Formulating Effective College Freedom Of Expression Policies Under The First Amendment