UNC Board of Governors to discuss system-wide free expression policy

Last August, FIRE reported on the passage of House Bill 527, North Carolina legislation aimed at improving free speech protections on public college campuses in the state. The law requires the Board of Governors of The University of North Carolina to develop a free expression policy that would cover all UNC campuses, a process the Board is currently undertaking. While FIRE had serious concerns over a subcommittee draft of the policy, the current draft, scheduled to be discussed tomorrow, appears to have corrected course.

HB 527 requires the Board to develop a policy guaranteeing students the right to engage in spontaneous, unregistered expressive activity on campus, so long as such activity is lawful and does not “materially and substantially disrupt the functioning of the constituent institution.” Correspondingly, the law directs the Board to create a range of sanctions for any person under its jurisdiction who “substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others.”

As FIRE has discussed previously, such a “material and substantial disruption” standard is reasonable, at least on its face. If applied properly, the policy will prevent the kind of disruptions that infringe on free speech rights, such as disruptions that prevent individuals from speaking, from hearing a speaker, or from attending an event. (The Board would do well to add further examples of non-disruptive protest that would not be in violation of the policy to bring clarity to this point, and to assist UNC institutions in applying the policy.)

However, a subcommittee draft of the Board’s policy, reported on last week, presented two options for sanctioning disruptive conduct for consideration, with one of the options presenting problems we detailed when discussing the Wisconsin Board of Regents’ recently adopted free speech policy.

Like the Wisconsin policy, “Option 1” of the subcommittee draft instructed: “Any second finding of a substantial disruption or substantial interference shall result in at least a suspension as provided by the appropriate disciplinary procedures.” “Option 2” of the subcommittee draft would presumptively impose suspension after a second offense, but allowed the institution to “impose a different sanction if warranted.”

Since mandating a minimum punishment of suspension after two offenses could lead to punishments that are disproportionate or unresponsive to the case at hand, FIRE argued that institutions should have the ability to impose sanctions based on the context and facts of each case and that Option 1 should not be approved.

On Monday, meeting materials were posted for the November 2 meeting of the Board of Governors Committee on University Governance, including a draft of the free expression policy that had removed Option 1, leaving Option 2, FIRE’s preferred choice. FIRE hopes that Option 1 has indeed been entirely abandoned, and we will be following tomorrow’s meeting and future meetings of the Board for updates on this provision.

In light of the policy’s imminent adoption, we call on the constituent institutions of the UNC System to revise their policies regulating expression to First Amendment standards. Nine of the sixteen UNC System institutions rated in our Spotlight database earn a “yellow light” rating from FIRE. (Institutions earn an overall yellow light rating when they maintain at least one policy that, by virtue of vague wording, could too easily be applied to restrict free speech.) These schools include: Fayetteville State University, North Carolina A&T State University, North Carolina State University, University of North Carolina - Asheville, University of North Carolina - Pembroke, University of North Carolina School of the Arts, Western Carolina University, Winston-Salem State University, and Elizabeth City State University.

Many of these yellow light universities maintain policies that will soon be in clear, direct violation of the UNC free expression policy draft. That policy would guarantee students, staff, and faculty the right to “assemble and engage in spontaneous expressive activity,” yet several UNC institutions currently require students to give the administration advance notice before engaging in expressive activity.

Winston-Salem State, for example, requires students planning an assembly or public address to contact the Director of Student Activities for an application, which must be received “at least 3 business days before the proposed time and date of event.”

UNC School of the Arts insists that “prior approval” is not required, yet states that “notification of the intent to hold a gathering or assembly must be given to the UNCSA Dean of Students and the UNCSA Department of Police & Public Safety, at least 48 hours in advance.” This approval/notification distinction is meaningless for students wishing to engage in spontaneous demonstrations, which are often necessary in order to meaningfully respond to immediate or still-unfolding events.

FIRE will be monitoring the adoption of this policy and its procedures for sanctioning disruptions, and stands ready to assist UNC institutions with revising their policies to better protect students’ free speech rights.