Delaware State agrees to campus safety initiative — but only if student participants sign a sweeping NDA

Public university students have some basic rights. Not being sexually assaulted on campus would be one of them. The First Amendment-protected freedom to protest campus violence is another. So is the First Amendment right to talk to journalists about what’s going on. But in a shocking move by administrators at Delaware State University, which has been roiled by unrest over campus safety concerns since January, the university has agreed to join students to form a Safe Spaces Coalition — but only if the students involved sign a sweeping non-disclosure agreement barring them from talking about the issues anywhere else.

Public universities cannot make students trade one right for another. But that’s what DSU is asking with its overbroad NDA, forcing coalition members to agree to “keep absolutely confidential any and all information related to . . . [their] participation as a committee member.”

FIRE wrote the university’s president today demanding DSU rescind this unconstitutional mandate immediately. 

USA Today’s Kelly Powers, who’s been reporting on the DSU protests for months, first flagged this major First Amendment violation this week. She previously raised transparency concerns when a January town hall meeting with protesters was closed to the public. Powers, who hoped to cover the event (that stretched nine hours, by the way), was escorted out of a DSU auditorium by an administrator. 

DSU doesn’t get to make public campus safety policies in private. And it certainly can’t muzzle the students who care most about these issues.

“This is a family event,” he told her.

But government-funded institutions aren’t families. They’re state actors, accountable to the public for every action they take. Holding secret meetings and threatening students who talk about how the school is handling — or mishandling — campus safety raises serious transparency concerns.

As a free speech watchdog, FIRE also found numerous constitutional problems with the overbroad NDA. As FIRE Senior Program Officer Zach Greenberg wrote to DSU’s president today:

Student speech about how a public university uses government funds to implement campus policies and services concerning sexual assault, domestic violence, harassment, bullying, and mental illness is political expression meriting the highest protection under First Amendment standards. Such discussion “has always rested on the highest rung of the hierarchy of First Amendment values,” and falls squarely within the type of speech that the First Amendment protects. DSU’s ban on disclosing any information related to these issues restricts core political speech and runs contrary to DSU’s legal obligations as a public institution bound by the First Amendment.

DSU’s confidentiality agreements are unconstitutional for the further reason they constitute a prior restraint on student speech in a manner untethered to any legitimate university interest. Prior restraints on speech are “the most serious and the least tolerable infringement on” freedom of expression. The risk prior restraints present to freedom of expression is so great that the “chief purpose” in adopting the First Amendment was to prevent their use. Courts, including the Supreme Court, have long held that prior restraints are permissible only in the direst circumstances, such as a demonstrated threat to national security.

We don’t dispute DSU’s has a duty to keep confidential a limited amount of private student information, such as the identities of sexual assault victims. But a ban on disclosing “any and all information related” to a student’s participation in Coalition committees is plainly overbroad in scope, sweeping within its ambit broad swathes of student expression far exceeding any private information for which DSU can articulate a defensible interest.

DSU doesn’t get to make public campus safety policies in private. And it certainly can’t muzzle the students who care most about these issues, who’ve been working for months to get the school to take action. The law demands more transparency from state actors, not less.

So while DSU will surely have to revisit the resources it expends to ensure campus safety, students’ expressive rights cannot be among the costs.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).