Reprinted with permission from Student Characteristics Matter: Implications for Academic Advising, 2004. Copyright held by Penn State's Division of Undergraduate Studies.

First and foremost in a discussion of college students' civil rights, we must recognize that United States' citizens do not have a right to a college education. Contrast this negative with school-age U.S. children's right to a free and appropriate education in the school district in which they live. In fact, in addition to having the right to a free and appropriate education, school-age children are subject to compulsory education.

College Students' Rights versus High School/Elementary School Students' Rights

Although there is no right to a college education in the U.S., once in college, what rights apply?

College students are guaranteed many of the same freedoms as other adults. To understand college students' rights, we must distinguish between college students and high school and elementary students. In the hierarchy of civil rights/civil liberties, elementary students have the fewest civil liberties. In fact, a recent Pennsylvania case proved this model to be true [Walker-Serrano v. Leonard (2003)]. A third grade student sued the school for preventing her from circulating a petition. The Third Circuit Court of Appeals ruled that the school acted appropriately and did not violate the third grader's First Amendment rights. In explaining its decision, the court noted “There can be little doubt that speech appropriate for eighteen-year-old high school students is not necessarily acceptable for seven-year-old grammar school students.”

High school students have greater rights than their younger counterparts but not as many rights as college students. Some people refer to high school students' civil rights as a junior version of the Bill of Rights. Two good examples of high school students' rights are the cases of Tinker and Hazelwood.

In Tinker v. Des Moines Independent Community School District (1969), the school district suspended students who wore black armbands to protest the Vietnam War. The students went to the Supreme Court to challenge the school district's actions. The students were successful, and the Supreme Court of the United States ruled that neither students nor teachers lose their constitutional rights to freedom of speech or expression at the schoolhouse gate. The court did, however, explain that students' rights could be restricted: “But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place or type of behavior—materially disrupts class work or involves substantial disorder or invasion of rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court held that school officials did not violate students' First Amendment rights when they prohibited the publication in the school newspaper of stories that the officials found objectionable. The Court concluded that the newspaper, which was produced by a high school journalism class, was “fairly ... characterized as part of the school curriculum” because it was “supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.” The court found that the newspaper was more curricular than extracurricular.

Tinker and Hazelwood demonstrate that high school students, as opposed to elementary school students, are afforded greater latitude in exercising their constitutional rights. Thus, when high school students become college students, their rights again increase, and they are granted constitutional freedoms much like other adult U.S. citizens.

Freedom of Speech

Freedom of speech is a U.S. citizen's fundamental right, guaranteed by the First Amendment of the United States Constitution: “Congress shall make no law ... abridging the freedom of speech . . .” A premise of collegiate academic life in the United States is the ability to engage in free and open discussion, speculation, and investigation. Thus, particularly in academic settings, the freedom to speak candidly on a variety of subjects is critical. Historically, many colleges played the role of surrogate parents and attempted to censor some kinds of speech, behavior, and activities. While this type of suppression is now the exception rather than the norm, disagreement lingers about the scope of students' free speech rights on campus.

Hate Speech on Campus/Speech Codes

Speech codes are designed to stifle certain types of communications. The purpose of a speech code is generally well meaning—such as protection of racial minorities, sexual minorities, and women. Unfortunately, speech codes often prohibit speech that is constitutionally protected. Only a few areas of speech are not constitutionally protected—such as fighting words, libel, incitement, obscenity, child pornography, bribery, perjury and counseling to murder.

Most courts that have dealt with speech codes found them to be unconstitutional. For instance, in a recent case against Shippensburg University, Bair v. Shippensburg University (2003), U.S. Middle District Judge John E. Jones III ruled that the university would be barred from enforcing provisions of a code of conduct because they violated the First Amendment. An example of an unconstitutional code provision in the Shippensburg case is this statement: “The expression of one's beliefs should be communicated in a manner that does not provoke, harass, intimidate or harm another.” Another example of an unconstitutional code provision in the Shippensburg case is “No person shall participate in acts of intolerance that demonstrate malicious intent toward others.”

In another decision, Saxe v. State College Area School District (2001), the Third Circuit Court of Appeals held that a public high school's anti-harassment policy violated the First Amendment. That policy included the following as examples of harassment: “unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above. Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display or circulation of written material or pictures.”

In light of these two cases, consider Penn State's Statement on Intolerance (2001). Would it withstand a student's First Amendment challenge?

Policy AD29 STATEMENT ON INTOLERANCE:

DEFINITION: Intolerance refers to an attitude, feeling or belief in furtherance of which an individual acts to intimidate, threaten or show contempt for other individuals or groups based on characteristics such as age, ancestry, color, disability or handicap, national origin, political belief, race, religious creed, sex, sexual orientation or veteran status.

POLICY: Acts of intolerance will not be tolerated at The Pennsylvania State University. The University is committed to preventing and eliminating acts of intolerance by faculty, staff and students, and encourages anyone in the University community to report concerns and complaints about intolerance to the Affirmative Action Office or the Office of the Vice Provost for Educational Equity, and in cases involving students, reports also may be made to the Office of Judicial Affairs. . . .

EXPRESSION OF OPINION: The expression of diverse views and opinions is encouraged in the University community. Further, the First Amendment of the United States' Constitution assures the right of free expression. In a community which recognizes the rights of its members to hold divergent views and to express those views, sometimes ideas are expressed which are contrary to University values and objectives. Nevertheless, the University cannot impose disciplinary sanctions upon such expression when it is otherwise in compliance with University regulations.

Protests and Demonstrations

Students have the right to hold protests, rallies, demonstrations, and the like. The university can, however, restrict these activities where students protest on school property with content-neutral time/place/manner restrictions and can possibly stop a demonstration if it interferes with school activities. For instance, a rally might be restricted or moved if it were so loud that it were interfering with class instruction inside a building. Students can be disciplined for skipping class to attend a demonstration. It may be possible in certain circumstances to prevent non-students from leafleting on campus [Brister v. Faulkner (2000)].

Internet Speech

Students are entitled to First Amendment rights in the area of Internet use. Students should be free to download, view, and print materials for both academic use and personal use. In the area of Web publishing, a case from California illustrates that college students have the right to publish/post on the Internet even if the speech is critical of the college of its professors. In Curzon Brown v. San Francisco Community College District (2000), an English professor sued to block a student-published website, The Teacher Review. The site provided an online resource for students trying to decide which teacher and courses to select. Shortly before the case went to hearing, the professors voluntarily dismissed their suit.

While students have extensive freedom in Internet use, such use is subject to some restrictions. For example, the use of university computers to view child pornography for research/educational purposes was found not to be protected by the First Amendment in a case from Iowa, State v. Robinson (2000).

Students' Extracurricular Speech

Various extracurricular activities are presented to students on campuses: special interest groups (such as women's groups, religious groups, foreign language study groups), fraternities and sororities, sports clubs, political clubs, media outlets, and a host of other activities. Students have the right to choose which groups to associate with and what speech to engage in while participating in those extracurricular activities.

For instance, the extracurricular student-run college newspaper, radio station, and/or TV station is generally free to publish any content that the student editors choose. The deference afforded to school administrators in high school settings (like the Hazelwood case we discussed earlier) is not given to universities or colleges trying to regulate speech in college newspapers or yearbooks. A case from the Ninth Circuit succinctly stated the difference between high school yearbooks and newspapers. In Nicholson v. Bd. Of Educ. Torrance Unified Sch. Dist (1982), the court said “[d]ifferent considerations govern application of the first amendment on the college campus and at lower level educational institutions” and that “activities of high school students” may be reviewed more stringently than those of college students because “the former are in a much more adolescent and immature stage of life and less able to screen fact from propaganda.”

Students' Curricular Speech

If, however, the TV station, radio station or newspaper is part of curriculum, it is possible that the student's First Amendment rights may be limited. In a recent case from California, the Ninth Circuit differentiated between freedom of speech for college students in extracurricular as opposed to curricular speech.

In Brown v. Li (2002), a graduate student put a two-page section into his thesis and submitted it to the university library. The two-page section, entitled “Disacknowledgements,” began: “I would like to offer special Fuck You's to the following degenerates of being an ever-present hindrance during my graduate career.” It then identified the dean and staff of the UCSB graduate school, the managers of Davidson Library, former California Governor Wilson, the Regents of the University of California, and “Science” as having been particularly obstructive. After the graduate student submitted his thesis with the two-page “Disacknowledgements” section, the thesis committee refused to approve the master's thesis. The court upheld the thesis committee's refusal to approve the thesis with the two-page “Disacknowledgements.”

The majority in Li held that Hazelwood offered the proper analysis for free speech in curriculum: “The Supreme Court's jurisprudence does not hold that an institution's interest in mandating its curriculum and in limiting a student's speech to that which is germane to a particular academic assignment diminishes as students age. Indeed, arguably the need for academic discipline and editorial rigor increases as a student's learning progresses.”

Discrimination

College students have the right to an education that is free from discrimination. A variety of laws, both federal and state, protect college students from discrimination based upon race or gender, among other things. Many of these protections stem from the equal protection guarantee established in the Fourteenth Amendment: “[N]or deny to any person within its jurisdiction the equal protection of the laws.”

For instance, the Pennsylvania Administrative Code contains a section on Higher Education stating “The institution may not take an action, direct or indirect, to segregate students in a classroom or course on the basis of race, color, religious creed, ancestry, national origin, handicap or disability, age or sex . . .” (22 Pa. Code § 32.3). In addition, another provision of the Code provides that the professional educator may not discriminate on “the basis of race, National or ethnic origin, culture, religion, sex or sexual orientation, marital status, age, political beliefs, socioeconomic status; disabling conditions or vocational interest against a student or fellow professional” (22 Pa. Code § 235.8).

Sexual Harassment

College students have the right to an education that is free from sexual harassment. Sexual harassment is unwelcome verbal or physical acts or behavior of a sexual nature. On the college campus, sexual harassment could be a professor requesting sexual favors in return for higher scores. Colleges owe a duty to their students to take reasonable steps to protect against foreseeable acts of violence on their campuses and harm that naturally flows from such acts. Many colleges have sexual harassment policies, and these can assist students in understanding their rights.

Again, a variety of laws, both federal and state, protect college students against sexual harassment. For instance, Title IX prohibits sex discrimination in any educational program or activity that receives federal financial assistance.

Lesbian, Gay, Bisexual and Transgender Students

Lesbian, gay, bisexual, transgender (LGBT) and questioning students have a right to an education that is free from harassment or discrimination. In addition, LGBT students' privacy rights must be respected; professors or staff should not disclose students' sexual preferences. Colleges have an obligation to treat LGBT students in the same manner as any other student. As with other students, LGBT students should be afforded equal protection.

Title IX protects gay students from harassment in schools that receive federal funding because anti-gay harassment is discrimination of a sexual nature. Also, as noted above, some Pennsylvania laws prohibit discrimination based on sexual orientation.

Disabled Students

Students with disabilities must be given equal opportunities, sometimes through what is referred to as reasonable accommodations, to be involved in college classes and activities. Disabled students are protected under several laws, most notably the Americans with Disabilities Act (ADA). The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. In order to receive a reasonable accommodation (an accommodation that minimizes or eliminates the impact of a disability), students must identify themselves as students with disabilities. Some campuses offer specialized offices to deal expressly with students with disabilities.

Conclusion

College students are usually adults, persons over eighteen years of age. Adults in the United States are entitled to the full range of civil rights guaranteed by the U.S. Constitution. Thus as adults and college students, college students hold a special position as those who continue to attend school but have achieved the age of majority.

Judge Reinhardt, in the Li case, succinctly conveys the fact that college students' civil rights are much like the civil rights of any other adult U.S. citizen: “[C]ollege and graduate school students are typically more mature and independent, they have been afforded greater First Amendment rights than their high school counterparts, just as they have been afforded greater legal rights in general. Along with the right to vote, most college and graduate school students are permitted to drive automobiles, to purchase cigarettes, to marry and even to join the military . . .”