‘Not Absolute’

In 1969, in the wake of widespread protests against the Vietnam War in schools and college campuses across the nation, Tinker v. Des Moines established that students do not leave their First Amendment and other constitutional rights “at the schoolhouse gate.” 

Today, college campuses are once again the site of high-profile protests, with students rallying against the actions of Israel and the United States’s support, and calling for their universities to divest from Israel. 

“You look back historically, and it hasn’t been since the late ‘60s or early ‘70s that the First Amendment or freedom of speech has seemingly been such a volatile issue, a polarizing one on campuses,” says civil rights attorney Andrew T. Miltenberg of Nesenoff & Miltenberg. 

Students and universities alike have faced backlash for the protests. Trump administration threats to remove federal funding have led some schools, like Columbia University, to change their policies on protests. 

“There is so much pressure on schools—government pressure, outside pressure—to come down hard on these students and to be very vigilant in how they address these protests that, undoubtedly, it’s affecting how schools are handling these matters,” says Kimberly Lau, principal and chair of the Title IX and education practice group at Offit Kurman. “They’re taking them seriously. They’re issuing high punishments.” 

“There’s starting to be an encroachment on those rights of students,” Miltenberg says. “If everyone’s not careful, we’re going to end up with a more restrictive campus environment.” 

So what should students know about their First Amendment rights on campus? 

Despite Tinker, universities still have the ability to enforce policies limiting speech, says Lau. “You have to be aware of the applicable provisions in the student handbook.” 

Private schools, for example, have more leeway than public schools to limit speech. “They can regulate how protests go on campus,” says Lau. “They can regulate the method, the duration, and set other guidelines, which schools like Columbia do. In fact, they have pretty significant guidelines with respect to protests.” 

Public schools, meanwhile, must recognize First Amendment rights, although they can place restrictions on time, manner and place. “You really have to make sure regulations are content-neutral and that they’re applying them in an evenhanded way,” Lau says. “If you’re going to enforce your policies for student protests for one issue—a civil rights issue, for example—you have to apply the same restrictions and limitations there that you would to a pro-Palestinian protest. You can’t pick and choose due to outside pressures which one you come down harder on.”

Obviously, violence, threats, injuries and property destruction are not protected by the First Amendment, and when these occur, governmental or law enforcement agencies get involved. 

University oversight and potential disciplinary actions such as suspension or expulsion can be applied only in connection with on-campus protests, Lau says, not off-campus actions or social media activities. But once again, it’s not absolute. “If it affects campus, they can argue they have a right to enforce,” she says. 

Miltenberg agrees it’s an evolving issue. “I don’t think there’s any single answer,” he says. “We’re at the beginning of understanding and defining the terms.”

Lau sees an issue with the idea of collective punishment for those involved in protests. “Not every student involved in these types of cases is equally culpable. They’re not engaging in exactly the same actions as maybe another peer group,” she says. “It just becomes hard when you treat the whole group the same.”

That’s one reason students facing disciplinary review should consider seeking legal help. “They shouldn’t assume that the process, the policy or the procedure by which the university investigates or adjudicates campus civil rights issues is fair, reasonable or will protect them,” Miltenberg says. “The policy and procedure at a university, the investigators, are not there to protect you. They’re there to protect the university.”

He advises retaining a lawyer early. “I can’t tell you how many people come to me after they’ve given two interviews or after the school decided that, even though they made what would otherwise be protected-language speech off-campus, they’re still being sanctioned. And my answer is, ‘OK, but it’s very difficult to fix statements if they’re on the record. It’s very hard for me to protect you,’” he says. “People, students especially, tend to get lulled into a false sense of security because they think that they’re in a protected environment where someone’s looking out for their best interests. The answer to that is an unequivocal no.” 

International students, whose visas rely on university standing, face an even greater level of risk. “If you have a student visa and you get charged with something, I mean, that’s it. You win or go home,” Miltenberg says. “I think that’s putting students at greater risk and probably going to have a chilling effect on free speech on campus.” 

Says Lau, “I’d love to just say ‘be responsible’—be responsible with how you express yourself, inform yourself of the policies that will guide the school in how they view your actions and be guided accordingly. But students’ rights are not absolute, despite what the motto might be of the school. Despite their platitudes and aspirations, schools still hold discretion in what they deem to be reasonable or punishment-worthy.”