Incoming Students: You Have to Know Your Rights Before You Can Defend Them
August 30, 2011
At FIRE we're contacted by, and advise, hundreds of students per year on various issues of individual rights on campus. Through our blog and other media, not to mention the dozens of lectures our staff give on campuses each year, that advice reaches many thousands more.
As a new school year is getting under way—and as a fresh corps of college freshman arrive at their new homes away from home—now could hardly be a better time to rebroadcast our message on what rights students should expect at their colleges, and how to protect them. Today I'll give a few pointers on preparatory and preventative steps students should take to gain a full understanding of their rights on campus, lest they find themselves up against campus censors or caught up (rightly or wrongly) in a university's disciplinary system. Later this week I'll turn to the topic of what to do if you believe you have encountered a violation of your rights, and how to protect yourself.
So, whether you're a fifth-year senior or a bright-eyed freshman, what measures can/should you take in advance? I could make literally dozens of suggestions, but hopefully these four should encompass enough territory for starters.
Read FIRE's Guides to Student Rights on Campus. Making this your first step will provide you with a thorough understanding of FIRE's expertise on matters of free speech, due process, and other issues regarding student rights on campus. It will also give you a healthy framework for evaluating your schools' policies, making it easier to spot inequities in these regulations. FIRE publishes five Guides (available free at thefire.org/guides), covering free speech, due process, religious liberty, freedom of conscience, and student fees and student group funding. I suggest students take the time to review them all, starting with our Guide to Free Speech on Campus. Students who take the time to read through that Guide should be pleased to learn, particularly at public schools, that the First Amendment's protections (bolstered by decades of legal precedent in favor of student rights) cover the vast majority of your speech-related activity. Read our Guides and be rightfully skeptical of anyone who tries to tell you you're not allowed to say something.
Study your student handbook, code of conduct, and all relevant university policies affecting your rights. Your academic advisors, resident advisors, and a host of other officials will advise you take the time to read these things through. Take their advice. Aside from the simple fact that you won't know what may subject you to punishment until you've read up on school policies (which is especially true at private schools, which are not legally obligated to abide by the First Amendment), no one wants to find themselves accused of a serious infraction of their school's policies without knowing what they did to find themselves in that position or what rights they have to defend themselves. Take this from someone who spent far more time scrutinizing the University of Pennsylvania's student-published freshman facebook (an actual book, back in my day) than poring over the details of my student handbook. Fortunately, I led a remarkably dull and uncontroversial college existence, so I got away with it. Others might not be so lucky. Once students have read through their schools' own policies, they can also check them against their schools' ratings in our Spotlight database of campus speech codes and see how they stack up.
Know your college's commitments to free speech backwards and forwards. As we've said, public universities are required to abide by the First Amendment. Most private universities generally announce very strong commitments to free speech and inquiry in their various statements--and students can hold them to that obligation when they fall short of living up to it.
Know what the rules are—and when you might want to break them. If you've been through our Guides, looked at the prevalence of speech codes in our Spotlight database, or read a couple of weeks of posts here at The Torch, then you know that there are no shortage of unconstitutional speech policies out there, and that punishment of the protected speech of students is far too common. Many of these policies are so unconstitutional (or in the case of private universities, in violation of their own commitments to free speech) as to be unenforceable. A college cannot legitimately punish you for racial harassment for criticizing affirmative action policies. It's not reasonable for a university to require five days advance notice for any student group wishing to stage a political protest, much less confine them to a tiny, out-of-the-way spot on campus.
Not all regulations on student speech and other activities are unconstitutional, of course (though some are annoying and excessively bureaucratic). For this reason (tying back in to my earlier exhortation to read your policies) I always advise students to be very mindful of the rules, and to be prepared to follow them to the letter. There's a reason for this: If you, or your student group, dot every I and cross every T and still encounter difficulties with your administration, the onus will be on the administration to explain themselves. Very frequently this will open up the administration to charges of viewpoint discrimination and the practice of maintaining impermissible double standards, and universities will be forced to admit their mistake. Some universities will also search for a way to shut down "unpopular" speech on the basis of vague technicalities, and students who have played by the rules can call them out when they do.
While I note that universities cannot legitimately punish students for exercises of their protected speech, of course, some will try to do so anyway. Should a student find himself subject to a violation of his rights, he or she will need to take affirmative measures to be able to defend himself. For my next blog on that topic, I'll give students some pointers on how to do just that.