Speech and Speech Codes in High Schools and Public Universities

What is free speech? Is speech ever truly free in an academic setting? Does

“freedom of speech” change depending on whether it refers to high school students,

college students, and college professors? Are speech codes at public universities a good

idea, and if so, what should they say? These are the questions underlying this paper. A

closer look at US Supreme Court decisions related to free speech in academic settings

reveals that the meaning of free speech changes dramatically depending on whether it is

applied to high school students or college students. The Supreme Court promoted the

free speech rights of high school students in West Virginia State Board of Education v.

Barnette (1943) and affirmed these rights in Tinker v. Des Moines School District (1969),

but it restricted these rights in Hazelwood School District v. Kuhlmeier (1988). The

Supreme Court and the Appellate Courts have consistently upheld the free speech rights

of college students and professors in cases such as Antonelli v. Hammond (1970), Papish

v. University of Missouri (1973), Stanley v. Magrath (1983), and Hardy v. Jefferson

Community College (2001). In an effort to understand the intricacies of speech rights in

academic settings, I read the individual Supreme Court opinions issued in these cases as

well as commentary regarding the contemporary effects of these rulings. In an effort to

better understand why universities enact speech codes and whether the codes are legal, I

read F.I.R.E.’s Guide to Free Speech on Campus by David A. French, “Freedom of

Expression and Public Morality” by Walter Berns, “There’s No Such Thing as Free

Speech and It’s a Good Thing, Too” by Stanley Fish, “Ban It! The Initial Arguments for

Speech Codes” by Timothy Shiell, and “There’s Such a Thing as Free Speech and It’s a

Good Thing Too” by Stephen Smith. I also looked at the speech codes of various public

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and private universities, including Michigan University, Haverford College, and

Swarthmore College. First, I will examine the free speech rights of high school students,

college students, and college professors, and the limits of those rights; then I will

investigate the overt and covert rationales for speech codes and the characteristics that

determine whether a speech code is legal or illegal; and finally, I will review the ethical

and practical arguments for and against speech codes and make suggestions as to how

colleges and high schools can implement sane speech policies. What I have found is that,

so long as speech is not unduly disruptive, high school students, college students, and

college professors alike have a right to say what they believe even if others consider their

speech to be offensive. Speech codes in high schools and public universities that try to

restrict speech on the grounds that it may offend others are unconstitutional and

impractical. The best speech policies are narrowly constructed to encourage tolerance

and respect in the academic community while affirming a commitment to academic

freedom in ideas, art, and political expression.

PART 1: Speech Rights and Limitations in Academic Settings

High school students have constitutionally protected speech rights. In West

Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled that

elementary and high-school students have a right not to salute the American flag and not

to say the pledge of allegiance. The precedent established by that ruling is that schools

cannot compel the speech of students. In Tinker v. Des Moines School District (1969),

the Supreme Court ruled that elementary and high-school students have a right to

peacefully protest in school with armbands, leaflets, polls, petitions, underground

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newspapers, and rallies. The majority opinion in that case states, “It can hardly be argued

that either students or teacher shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate” (Tinker v. Des Moines School District, 2). The

precedent established by that ruling is that high schools cannot prohibit students from

expressing opinions unless those opinions create a severe disturbance in the school or

hurt the rights of other students. As the Court wrote, “A prohibition against expression of

opinion, without any evidence that the rule is necessary to avoid substantial interference

with school discipline or the rights of others, is not permissible under the First and

Fourteenth Amendments” (Tinker v. Des Moines School District, 1). The court thus

implied that the speech of elementary and high-school students can be restricted if it is

disruptive.

The speech rights of high school students are hence limited in cases where the

speech is disruptive. In Hazelwood School District v. Kuhlmeier (1988), the Supreme

Court ruled that schools could censor high-school newspapers. In its majority opinion the

Court wrote, “First Amendment rights of students in the public schools are not

automatically coextensive with the rights of adults in other settings, and must be applied

in light of the special characteristics of the school environment. A school need not

tolerate student speech that is inconsistent with its basic educational mission, even though

the government could not censor similar speech outside the school” (Hazelwood School

District v. Kuhlmeier, 1). In that case, the Court made clear that the speech rights of

adults are greater than those of minors. The court affirmed that high schools have a right

to prior restraint, which means administrators can view high school newspapers before

they are published, though administrators cannot censor the newspaper unless it uses

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speech that is obscene, libelous, or slanderous, or if administrators believe that the

content will cause a major disruption that goes against the basic mission of the school.

Such a disruption would not include merely creating controversy among students or

parents or even sparking threats of violence; rather, the disruption would have to cause

teachers to be unable to fulfill their basic teaching duties. An example of such a

disruption would be for a student to make an anti-war speech in the middle of a class. In

that case, the high school would have the right to censor that student’s speech.

The speech rights of college students are greater than those of high school

students. Whereas high school newspapers can be censored if their content would be

disruptive to a school’s mission, public university newspapers cannot be censored. The

Supreme Court has repeated ruled in cases such as Antonelli v. Hammond (1970), Papish

v. University of Missouri (1973), and Stanley v. Magrath (1983) that students at public

universities have the same speech rights as adults. For example, in Papish v. University

of Missouri (1973), the Supreme Court

ordered the reinstatement of a university student expelled for

distributing an underground newspaper sporting the headline
‘Motherfucker Acquitted’ on the grounds that ‘the mere
dissemination of ideas—no matter how offensive to good taste—
on a state university campus may not be shut off in the name alone
of conventions of decency.’ (quoted in Smith, 242).

The Supreme Court strongly protects the speech of college students in part because, as

one Justice wrote in Rosenberger v. Rectors and Visitors of the University of Virginia

(1995), universities are “the center of our intellectual and philosophic tradition” (quoted

in F.I.R.E. Policy Statement, 7).

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 The speech of college students and adults alike can be curtailed not because of the

content of the speech, but because of its location. As Walter Berns writes, “The

constitutional right to freedom of expression depends on the circumstances of the speech,

not its substance” (Berns, 190). For example, protestors cannot legally lie down in the

middle of the street and stop the flow of traffic, nor can a person shout fire in a crowded

movie theater. As Justice Black wrote in Tinker v. Des Moines School District, “It is a

myth to say that any person has a constitutional right to say what he pleases, where he

pleases, and when he pleases” (Tinker v. Des Moines School District, 10). In particular,

speech rights are more severely limited in cases where there is a “captive audience” made

up of individuals who do not want to hear the speech. For example, if a university

student yelled vulgarities at other students as they walked into class every day, the

university would have a right to censor that person’s speech.

College professors have broad free speech rights to offend their students so long

as the speech has a genuine academic purpose. In Hardy v. Jefferson Community College

(2001), the U.S. Court of Appeals ruled that professors have a right to curse and use

racial and ethnic slurs in the classroom so long as they are doing so for academic reasons.

The majority opinion states, “[U]sing the ‘N’ word in an academic context…when it is

germane to the classroom subject matter and advances an academic message, is protected

by the First Amendment” (Hardy v. Jefferson Community College, 10). On the other

hand, professors who use offensive slurs that are irrelevant to their courses and that

violate school harassment policies can be censured. Since students are almost by

definition a captive audience, professors must tread a narrow line when speaking about

anything non-academic that could possibly offend a student. Though it is

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“unconstitutional to suppress free speech on the grounds that it is subjectively offensive

to some listener” (Speech Code of the Month, 1), free speech can be suppressed if it

offends a captive audience without a particularly good reason for doing so.

PART 2: Rationales for and Legalities of Speech Codes in

Public Universities

Universities often implement speech codes that prohibit discrimination and sexual

harassment. Typically these speech codes aim to promote tolerance and diversity and to

deter very offensive speech. Some examples of very offensive speech include the

following:

“Make her prove she’s not a JAP, make her swallow”; “Stick rusty
nails up the asses of heterosexual men”; “Preppies, bimbos, men
without chest hair, and homos should be shot on sight”; “It’s
people like you [Asians] – that’s the reason this country is screwed
up”; “Death to all Arabs! Die Islamic scumbags!” (Shiell, 17)

Stanley Fish writes that “speech-related injuries may be grievous and deeply wounding”

and there is little doubt that he is correct (Fish, 109).

Interestingly, though, university speech codes are most likely to be enforced not

when a person is deeply wounded by speech, but when administrators personally find

speech to be offensive or inappropriate, when administrators fear that they will be

criticized by the community if they do not censor a person’s speech, and when

administrators are criticized themselves (see FIRE Issues Statement and Speech Code of

the Month). For example, many universities dis-invite guest speakers whose incipient

presence provokes an outrage in the community. Most of the court cases involving a

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university newspaper being censored result from administrators being personally

offended by article content or obscenities. Most comically, many of these censored

newspapers lampoon the administrators in the op-ed pages and in comic strips.

University administrators are motivated to suppress speech that makes them look bad, in

addition to speech that attracts controversy and negative publicity to the university and

makes it look bad.

Speech codes at public universities are unconstitutional if they are vague or

overbroad or if they allow prior restraint or viewpoint discrimination. Vague and

overbroad speech codes are unconstitutional because they chill legal speech and make

people afraid to speak out about anything controversial. An example of a vague and

overbroad speech code is one that prohibits a student or faculty member from creating an

“intimidating, hostile or demeaning environment” for another individual (cited in French,

70). Such a speech code is terribly subjective, and it prohibits speech that is offensive but

nevertheless constitutionally protected. Speech codes that allow prior restraint are a

serious threat to liberty because they squash dissent. Hence, prior restraint is almost

always illegal and public universities cannot pre-view or censor student newspapers.

Speech codes that allow viewpoint discrimination are unconstitutional because they

discriminate against selected groups. For example, a university cannot withhold funding

from religious groups because doing so discriminates against those who believe in

religion.

Legal speech codes at public universities are typically narrowly confined to

harassment, defamation, and hate speech. Those who seek to restrict another person’s

speech must typically prove that the speech threatens them, inhibits their ability to learn,

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or unduly burdens a member of a captive audience. University administrators are

motivated to foster a sense of community among students and to encourage students to

treat each other with respect, but university speech codes cannot compel kind speech or

censor constitutionally protected speech. As David A. French writes, “Having everyone

treat us pleasantly would be a wonderful thing, but it is certainly not a legal right”

(French, 81). Even private universities and colleges that have more leeway to restrict

student speech still must be mindful not to abridge students’ First Amendment rights to

expression. In particular, a school that bills itself as having intellectual freedom cannot

have a vague and overbroad speech code that makes it liable to charges of false

advertising.

PART 3: Arguments For and Against Speech Codes:

Constructing Sane Speech Policies

Speech codes at public universities are intended to promote tolerance and

diversity and to discourage offensive speech. Yet because so many speech codes are

vague and overbroad, they chill and censor constitutionally protected free speech.

Opponents of speech codes believe that public universities should be a “marketplace of

ideas” where free speech is a paramount right that outweighs all other considerations

(quoted in FIRE Policy Statement, 7). Proponents of speech codes believe that free

speech is a limited right that must be weighed alongside other important rights, including

justice, equality, and dignity. I will not take a position on whether or not public

universities should have speech codes, but I will argue that speech codes should be

narrowly constructed so that they are legally, ethically, and practically sound.

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 From a legal perspective, it is clear that people have a general right to express

themselves even if they offend others; there is a right to freedom of expression and not a

right to feeling comfortable. But the issue of freedom of expression in the academic

community is complicated by the specter of hate speech. From an ethical perspective, it

is not entirely clear that universities should permit hate speech. As legal expert Mari

Matsuda writes, “Tolerance of hate speech is not borne by the community at large.

Rather it is a psychic tax imposed on those least able to pay” (quoted in Shiell, 30). Hate

speech disproportionately targets the most marginalized groups of society: minorities,

homosexuals, and immigrants.

Though hate speech is toxic, prohibiting it may be worse. As Timothy Shiell

writes,

[H]ate speech should be condemned wherever it’s encountered.

But by banning it, we risk opening the floodgate to censors, self-
righteous moralists, and other enemies of freedom…The essence
of an education system that matters and counts is that people must
be free to express ideas, even wrong ideas…The answer is more
education, not regulation. (quoted in Shiell, 38)

Shiell’s belief is that it is preferable for people to express wrong ideas than to prohibit

them from expressing those ideas. That belief is explored in greater detail by Stephen

Smith, who writes the following:

Even if [hate speech codes] were constitutional, they cannot be

effective. Proscribing the words does nothing to change the
underlying thoughts and fears; hate speech does not express the
unthinkable, only the unreasonable. In fact, suppression of speech
often exacerbates and intensifies the sentiments of those silenced
by law, while denying to everyone the opportunity to see and
discover wisdom through debate and the clash of ideas…Hate
speech is much like a canker sore on the body politic. Legal

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 restrictions on hate speech only suppress the symptoms; they do
not treat the underlying causes of the social disease. Applying the
Band-Aid of a speech code might keep it from the sight of those
who would be repulsed, but the infection would remain and fester.
A better prescription would be to expose it to the air of speech and
the light of reason, the healing antibiotic of counterargument.
(Smith, 259-260)

Smith is arguing the speech codes only suppress hate speech and force it underground.

He would prefer that hate speech remain visible, where more open-minded people can see

it and try to respond to it and influence those who preach hatred. To Smith, speech codes

are varnishes that have the adverse effect of concealing ignorance, hostility, and

prejudice. He believes that the best way to get at the underlying causes of hate speech is

to allow conflicting ideas to clash out in the open. His view of the university is that it can

be a “debating club” whose debates serve to enlighten students (Shiell, 47). By contrast,

Matsuda is more concerned that the targets of hate speech feel safe and avoid

victimization. Her view of the university is that it is a potential safe haven for those who

have been historically oppressed.

It is possible for a university speech code to both allow for healthy debate and at

the same time provide a safe haven for students. Though Swarthmore is a private college,

its speech policy is particularly instructive because the policy balances free speech rights

with the goal of creating a community that is tolerant, respectful, and caring. The policy

states the following:

Swarthmore College seeks to maintain an environment of mutual

respect among all its members. All forms of violence, assault,
intimidation, and harassment, including that based on sex, race,
color, age, religion, national origin, sexual preference, or handicap,
undermine the basis for such respect and violate the sense of
community vital to the College’s educational enterprise. This

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 statement of policy should not be taken to supersede the College’s
commitment to academic freedom, which it hereby reaffirms. The
reasoned expression of different views plays a particularly vital
part in a college community. Freedom of expression, fundamental
to an exchange of views, carries with it corollary responsibilities
equally basic to reasoned debate. (College Life, 6)

This policy discourages harassment and disrespectful speech and at the same time affirms

the College’s commitment to academic freedom and the expression of different points of

view. The policy leaves readers with the sense that Swarthmore College will do

everything in its power to encourage mutual respect in the community without infringing

upon free speech rights. The policy goes on to clearly define harassment so that the term

is not vague, explaining that harassment must intended, reckless, repeated, and persistent

because “first, the College wishes to have the opportunity to educate those who may not

realize that certain expression constitutes harassment; second, by requiring that the

expression be repeated and persistent, the College helps establish intent or recklessness”

(College Life, 6). Swarthmore would rather educate than punish those who harass others.

By contrast, the policies at many large universities allow students to be punished after a

single offense and without any sort of hearing. The comforting message is that

Swarthmore will be careful not to punish students whose speech may not have been

intended to harass. Once again, the policy makes clear that it holds free speech rights in

high esteem:

However, before any expression can be considered for possible

formal grievance procedures, it must be clear that no substantial
free expression interests are threatened by bringing a formal charge
of harassing expression. This strict criterion for possible formal
grievance procedures must be imposed to ensure that the College
does nothing that would tend to diminish free expression or
compromise principles of academic freedom in the vigorous and

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 often contentious examination of criticism of ideas, works of art,
and political activity that marks Swarthmore College…Without
vigorous and controversial discussion and debate, the College
cannot survive; without respect and civility, however, it cannot
thrive. (Faculty Rights and Responsibilities, 3-6)

By bending over backwards to ensure that it does not abridge free speech rights,

Swarthmore College prevents there from being an educational atmosphere that chills free

speech. At the same time, the policy makes it abundantly clear that Swarthmore is a

community where respect for others is of paramount importance and where hate speech

will not be tolerated.

Where there is clear regard for free speech and for tolerance and respect in a

community, there is the best of all possible worlds. Students and teachers will avoid

making hateful, unthinking comments, and they are able to speak their minds and say

what they fear might be controversial. Hate speech will not be driven underground, but it

will be limited. Speech codes like the one that Swarthmore has are proof that speech

codes can allow for free debate and for safe havens. The key is that they present

guidelines for respectful community speech while continually reaffirming the First

Amendment rights of students and professors. By contrast, the worst speech codes

prohibit speech in a way that is vague, overbroad, and illegal. Many of these speech

codes are well-intentioned, but they have the ill-effect of inhibiting speech. The best

speech codes are narrowly constructed and still have the effect of fostering tolerance and

respect and deterring offensive speech.

As it stands now, college students and professors at public universities can feel

secure in their free speech rights. College newspapers can print what they want without

fear of censorship, college professors can offend their students so long as they are

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offending their students in order to teach them, and college students can say what they

think, when they think, within reason, as limited by their circumstances. By contrast,

high school students have speech rights that are much more limited. Theoretically, high

school students have the right to free expression in most circumstances. In reality,

though, a high school newspaper can be censored if the school views that the paper is

disruptive or if the newspaper’s contents go against the school’s educational mission.

The de facto effect of prior restraint in a high school setting is censorship, which will

occur whenever an administrator fears a risqué article will create controversy, whenever

an administrator is being criticized, or whenever an administrator capriciously decides

that an article is not acceptable. It does not make sense to me to limit the speech rights of

minors simply because they are minors. Elementary and high school students are the best

example of a captive audience in the sense that they are legally required to go to school

for approximately six hours a day, 180 days a year. If anything, they should have the

most generous right to free speech, not the most restrictive. I do not agree with the US

Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988) because I

reject the notion that the free speech rights of minors are in any way less valuable than

those of adults. Sane speech policy is most needed not in public universities, where

speech is already amply protected, nor in private colleges, where students choose to

attend, but rather in public high schools. As a society, we need to do a better job of

ensuring that the expression of young people is not stifled in schools.

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