At Columbia, Yale, University of Southern California, University of Texas, University of California Los Angeles, and elsewhere one has seen tent city campus landscapes, and students gathered for delivery of impassioned chants before cameras, sitting quietly with protest signs against walkways, or alternating turns to speak publicly to gathered crowds. Many times, however, news cameras capture scenes of harsh face-to-face conflict, clashes with police, and organized lawless acts by students, who trespass or interfere with campus operations — to underscore their demands and their commitment to a cause.
The pro-Palestinian protests at U.S. institutions of higher education present unprecedented legal challenges for administrators. At public institutions, administrators have to contend with the First Amendment rights of not just students and faculty who participate in protests, but also outsiders to campus who choose to join the protests and perhaps propel them further. At the same time, protest rhetoric has taken what many perceive as an overtly menacing tone, and administrators must carefully safeguard their community members’ rights to be free of harassment, and perceived threats to their safety.
This post presents six legal areas for issue-spotting by administrators.
1. It goes without saying that public colleges have to allow peaceful protests in areas designated for free expression. At community colleges, board policies and administrative procedures often specify that all outside areas generally available to students and the community may be used for expressive activities (some have more limited areas). Campus requirements for students, employees, or outsiders to obtain advance permission to use the speech areas carry a strong risk that a Court will strike the regulations down as unconstitutional prior restraints on speech, and many college procedures instead involve only an optional check-in prior to use of the areas. A public college can place legitimate time, place, and manner restrictions on use of the areas, and these restrictions by definition will have nothing to do with the content of the expression. They can include, for example reasonable limitations on use of amplification, provisions that the campus areas are closed overnight and cannot be used for camping, and also requirements that expressive activities cannot improperly disrupt or interfere with the college’s operations.
2. It is lawful for a public college to take action when legitimate rules are violated, even when protestors commit the violations in the name of their cause and the right to free expression. When students occupy administrative offices, block campus traffic, or trespass, they can legitimately suffer consequences without having their First Amendment rights infringed. The consequences can include not just suspension or other student discipline, but arrest and even criminal prosecution. Our nation has a long and honored tradition of civil disobedience as a means of effectuating change, and in the view of many, the willingness to suffer the legal consequences in support of a cause serves as part of what provides these acts of disobedience their moral significance.
3. Colleges and universities accepting federal funding have an obligation under Title VI of the federal Civil Rights Act to protect students from unlawful harassment on campus on the basis of these students’ protected classifications, including race, color, and national origin. This obligation extends to harassment based on religion, under the “shared ancestry” rule developed by the federal Office for Civil Rights (“OCR”). (Executive Order 13899, issued in 2019 on Combating Anti-Semitism, reaffirms the principle that anti-Semitism and discrimination against Jews are prohibited under Title VI based on a “shared ancestry.”) If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the institution must act to eliminate the hostile environment and prevent the harassment from reoccurring. Also, as the Department of Education clarified in a recent “Dear Colleague” letter, speech need not target an individual to constitute harassment under federal anti-discrimination laws. Speech issued to the public can rise to the level of harassment if, based on the totality of circumstances, the speech is “subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”
How can an institution both allow protests that could involve harsh rhetoric based on what appear to be protected classifications, and at the same time protect students? The OCR has provided some guidance, and this includes making sure that students are able to navigate their way to class and to other commitments without encountering protests. An institution can take the more extreme step of putting into place remote learning, as Columbia University has done.
4. A public college does not have to tolerate as part of a protest, expression that qualifies as a “true threat,” which is a serious expression of an intent to commit unlawful violence to a particular individual or group of individuals. Such a speech lacks First Amendment protection. Also, hate speech that does not qualify as a true threat could subject a student speaker to discipline under the student code of conduct, or a faculty member or other employee to discipline. Hate speech by outsiders can be dealt with under California Penal Code sections 626.4 and 626.6 when the standards of those statutes as to threat and level of disruption are met. Those statutes authorize individuals to be directed off campus and barred from returning for a certain time. Also, a college or university can request that law enforcement prosecute criminal conduct that outsiders commit on campus.
5. If the public college opens a forum for exchange of views (on social media, in a listserv, at a town hall), then administrators cannot discriminate against viewpoints. Protesters’ views need to be included when relevant to the topic. But the First Amendment does not authorize protesters to interfere with, disrupt, or interject presentations into an event or function dedicated to an unrelated purpose. For example, top constitutional law scholar Erwin Chemerinsky of U.C. Berkeley recently hosted a dinner event for students at his and his wife’s private residence. Protesters attended the event and one stood with a microphone they had brought to deliver remarks on Palestine; even though the host had created no “forum” for expression of views in this manner. Free speech commentators agreed afterwards that hosts in such a situation could stop the expressive activity (in this case for the additional reason that the event took place on the hosts’ private property).
6. What are the risks in just letting protests continue, even if administrators could halt them without offending the First Amendment or other laws? As a general rule, if the protesters break rules, the protest should not continue, but if the protesters do not break rules the protest may continue. There should not be administrator discretion in which expressive activities go forward and which do not. Picking and choosing presents the risk that other sets of protestors, for a different cause, at some future time, who do experience consequences for violating campus policy, can argue that administrators have violated the First Amendment by engaging in viewpoint discrimination – in particular, allowing other protests but not theirs.
That said, the current climate of social unrest on campus has such magnitude that higher education institutions may decide it is worth the risk to refrain from taking action in some circumstances, and to hold off on enforcing even valid restrictions in the interest of avoiding further disruption and potential physical harm and in the hopes of resolving disagreements with students. If challenged months or years later with claims of “selective enforcement,” the institution can point to the unique conditions that exist today but still would face some risk in the face of claims of inconsistent responses.
It is critical to contact trusted legal counsel to navigate these challenging issues on campus.