FIRE's 2018 policy statement on political speech on campus

With the 2018 elections approaching, the Foundation for Individual Rights in Education (FIRE) reminds campuses nationwide of the importance of unfettered student and faculty political expression, debate, and peaceful protest.

As FIRE observed in 2008, 2012, and 2016, major election cycles are routinely marked by censorship of political speech on campus. In 2008, faculty and staff members at the University of Illinois were told that they could not participate in a wide variety of political activity on campus, including wearing a pin or button in support of a political candidate and placing partisan bumper stickers on their cars. That same year, University of Oklahoma students and faculty were informed that they could not use their university email accounts to disseminate any partisan or political speech, including “political humor/commentary.” During the 2012 presidential election campaign, a student at Ohio University was forced to remove a flyer from her dormitory door criticizing presidential candidates Mitt Romney and Barack Obama. At Christopher Newport University, a student group was prevented from protesting a campus appearance by vice-presidential nominee Paul Ryan. In 2016, FIRE wrote to American University and Georgetown University Law Center after each institution prevented students from campaigning for their chosen candidates on campus, claiming their institutional tax-exempt status under Section 501(c)(3) of the Internal Revenue Code required that they censor student expression. To date in 2018, FIRE has successfully defended a faculty member investigated for protected political speech about former First Lady Barbara Bush, a student detained by campus security for passing out political flyers, and a coalition of student organizations denied funding by their student government because of their political expression.

Fourteen years after issuing our initial election-year call to colleges and universities to “prove themselves as models for democratic discourse,” FIRE remains deeply concerned about the censorship of political speech on campus. Whether due to viewpoint discrimination or confusion about Internal Revenue Service (IRS) requirements, silencing student and faculty political speech is unacceptable. In determining policy regarding political speech, tax-exempt colleges and universities must heed IRS regulations, as well as state and federal law. However, correctly interpreted, none of these legal authorities are in conflict with the equally crucial duty to uphold the First Amendment and basic principles of free expression on campus.

Students

Students at public colleges and universities enjoy the full protection of the First Amendment and must be free to engage in political activity, expression, and association on campus.

Students at private colleges and universities are entitled to that degree of freedom of expression and association promised to them in institutional handbooks, policies, and promotional materials, or due to them by virtue of state law (as in California) or standards of accreditation. (The overwhelming majority of private colleges and universities provide extensive promises of free speech in their materials and are properly held to standards comparable to those required by the First Amendment. Of the 446 colleges and universities rated in FIRE’s 2017 report on campus speech codes, only seven private institutions are listed as “warning schools” for clearly and consistently stating that they hold certain values above a commitment to free speech.)

Student Groups

Student groups at public universities enjoy First Amendment rights of free expression and association. Student groups at private universities enjoy those freedoms promised them by institutional handbooks, codes of conduct, and other published policies.

• Student groups may freely express the political viewpoint of their choice. Like the speech of individual students, the speech of student groups may be limited only by the few exceptions to the First Amendment (including obscenity, intimidation, true threats, incitement, and harassment—as defined by law, not by university regulation) and by reasonable, viewpoint- and content-neutral time, place, and manner regulations. This means that student groups must be allowed to publish, advocate, denounce, or otherwise engage in political expression as they see fit.
• Student groups at public universities may not be denied access to funding or university resources available to other groups because of their beliefs. When generated by student activity fees, student activity money constitutes “a fund that simply belongs to the students.” Political events, speaking engagements, and other partisan activities hosted by a student organization and funded by student activity fees are not institutional activities. When a public university decides to use student fees to fund a multiplicity of independent student groups, each student group retains its status as a private party expressing its personal viewpoint and cannot be censored by the university, nor cautioned against using allocated fees or facilities for “partisan purposes” or other political speech if those fees or facilities could be used by other groups for the same activity. If a public university or student government denies such funding to a student organization because of its partisan message or ideology, it is engaging in unlawful viewpoint discrimination.
• Students at public universities must be free to form their own political groups. Public universities must recognize and allow liberal groups to be liberal, libertarian groups to be libertarian, and conservative groups to be conservative. Student groups may not be denied recognition because of their beliefs or because similar groups already enjoy recognition. Denying a political or ideological student organization the right to associate with other students who share that group’s beliefs deprives them of their full freedom of association, a basic right guaranteed by the First Amendment.
• Student groups may post political speech or hyperlinks on a university-affiliated website. Universities sometimes attempt to limit political activity on student groups’ websites or remove hyperlinks to politically-oriented student groups’ websites on the university’s official website out of concern that this activity might be construed as the university’s own political expression. However, a university’s official website does not automatically become implicated in a linked website’s political activity. The presumption in such cases should be that the speech is not attributable to the university. This presumption should be overcome only where the speaker represents himself or herself as speaking on behalf of the institution, and only to the extent a reasonable person would believe that to be true. Section 501(c)(3) of the Internal Revenue Code does not require all linked websites on a tax-exempt university’s official website to be free of campaign activity. Whether a university website’s links are partisan is determined by assessing all relevant facts and circumstances in context.

Faculty

Faculty at Public Institutions

Faculty at public colleges and universities enjoy a broad right to engage in political speech as private citizens and outside the parameters of their employment-related activities. Faculty members should be free to participate in political rallies on campus, express partisan messages outside of the classroom (for instance, by wearing political buttons), disseminate political speech via email, post political humor and commentary on their office doors, and more. (State laws may vary in terms of the protections they afford to political speech in the workplace.) Professors taking part in such activities should be understood to be speaking as citizens on matters of public import, not as faculty members acting pursuant to their job-related duties.

The list of activities in which faculty at public universities may not participate is comparatively narrow and easily understood. Faculty may be prevented, for instance, from fundraising in class, making statements in support of candidates or a party on university letterhead, or otherwise offering oral or written public support for a candidate or party in a manner that could be reasonably perceived as attributable to the university. (Again, state law varies in this area, so faculty should review state-specific requirements.)

Individual state constitutions, state case law, collective bargaining agreements, and faculty resolutions may provide additional protections or rights beyond those enunciated by the First Amendment or federal case law. Faculty members at public universities are encouraged to consult these sources when considering the scope of their speech rights on campus.

Faculty at Private Institutions

Faculty at private colleges and universities enjoy the right to free speech as specified in their contracts with their employing institution. If freedom of expression is guaranteed, the faculty members of private institutions may engage in partisan political speech without impacting the tax-exempt status of their institution when such speech is not likely to be identified as officially representing the views of their employing institution.

As a general rule, the presumption should be that faculty are not speaking on behalf of the university. It is possible to overcome this presumption, however, and faculty who serve in a joint administrative capacity are more likely to run afoul of rules preventing the appearance of official endorsement. (Note that non-faculty employees of universities may not enjoy the same political speech protections as students and faculty.)

While working, faculty at private universities and colleges enjoy the right to free expression promised them in their contractual agreements with their employing institution. Of course, when not working, private university faculty members enjoy the fullest protection of the First Amendment from government interference as private citizens.

Institutions

While universities and colleges that are tax-exempt under Section 501(c)(3) of the Internal Revenue Code are prohibited from engaging in political activity as institutions, individual students, student groups, and faculty members do not endanger their institution’s tax-exempt status by engaging in partisan political speech when such speech is clearly separate and distinct from the institution’s views or opinions.

In 2002, the IRS made clear that “[i]n order to constitute participation or intervention in a political campaign . . . the political activity must be that of the college or university and not the individual activity of its faculty, staff or students.” Likewise, with respect to students specifically, the IRS has noted that “[t]he actions of students generally are not attributed to an educational institution unless they are undertaken at the direction of and with authorization from a school official.”

The presumption is that the political activity of students and faculty does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of the appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but it decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, nor to faculty members without administrative roles.

At public universities, partisan student groups may use institutional resources and facilities for partisan political expression and activities when the use of such resources and facilities is obtained in the same way that nonpartisan student groups obtain such use. Similarly, students and student organizations at private institutions promising freedom of speech are not prohibited by IRS regulations from using student activity fees to engage in political speech and activity, and may use institutional resources and facilities for these purposes—provided that these resources are made available to all speakers and student groups, and that each student group follows the same procedures observed by all others seeking to use university resources.

As long as partisan political activity on campus by students and student groups is neither privileged nor hindered by the institution, and as long as partisan political speech by students and faculty does not overcome the strong presumption that they do not speak for the institution, then the tax-exempt status of universities and colleges will not be endangered.

Conclusion

Students, student groups, and faculty at public and private universities enjoy a robust right to engage in political expression on campus. This is as it should be; political speech is a unique and vital component of democratic participation in the United States. Accordingly, the ability to create, engage, support, critique, refute, and verify the content of speech are necessary civic skills crucial to the health of our democracy.

But too often—and particularly in election years—FIRE confronts censorship of political expression on campus. Whenever students, student groups, and faculty members are prohibited from engaging in the political issues of the day, our democracy suffers. FIRE urges universities and colleges to carefully consider the unique function our institutions of higher education play in fostering debate and discussion on the most important issues of our time and to greet with deep suspicion any legal interpretation or contrivance that would undermine this crucial role.

If you think your expressive rights might be threatened by a college or university, please contact FIRE.

FURTHER RESOURCES

FIRE Student Network, FIRE’s FAQ for Political Speech on Campus (2017).

American Council on Education, Political Campaign-Related Activities of and at Colleges and Universities (2018).

Judith E. Kindell and John Francis Reilly, Election Year Issues, Exempt Organizations Continuing Professional Education Technical Instruction Program for Fiscal Year 2002, Internal Revenue Service (2002).