3:17 p.m., Feb. 17, 2010----While most Americans assume basic rights of free speech under the protection of the First Amendment, how these right apply to students in a college campus environment is not always clear.

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Helping students and members of the University of Delaware community get a better understanding of the boundaries of Constitutional protection concerning free speech was the subject of a panel discussion held Monday afternoon, Feb. 15, in Kirkbride Hall.

Speaking at the event were Ann Franke, president of Wise Results, LLC, of Washington, D.C., and Lawrence White, UD vice president and general counsel.

White, who works on a variety of law-related and policy-making issues at UD, noted that it is difficult for universities to draw the lines and establish boundaries where student free speech rights are concerned.

“The question is, what are the Constitutional rights to free speech for students attending a university?” White said. “The rulings of the courts have been inconsistent on this issue.”

White cited several cases, including Healy v. James, a 1972 decision by the U.S. Supreme Court concerning actions by Central Connecticut State College to prevent the Students for a Democratic Society (SDS) from establishing a local chapter on campus. Also cited by White was Rosenberger v. Rector and Visitors of the University of Virginia, a 1995 decision by the Supreme Court which stated the university could not deny funds for a student publication with a religious perspective while making such funds available to other student publications.

While both decisions favored students' rights of free speech, much has since changed in court rulings, White said. Citing Brown v. Li (2002), White noted the ruling of the court against a graduate student who sued because his master's thesis was rejected after he included a two-page section which strongly criticized the dean and staff of the University of California Santa Barbara, as well as former Gov. Peter Wilson.

“When Li's thesis was rejected, he said that the school had violated his free speech rights,” White said. “The court ruled in favor of the university saying that the goal of the university is teaching, and that students can be required to use the proper format.”

To help universities address such issues, White said the American Association of University Professors (AAUP) has issued a joint statement on recommended rights and freedoms of students, which can be found at this Web page.

While the courts are not clear about students' rights in academic situations, White said institutional policies at UD are designed to protect many rights of free speech for students.

“Members of the UD community are free to discuss issues, and students may distribute published materials and join groups and enjoy freedom from censorship,” White said. “While a university can't censor students on free speech, it can impose time, place and manner guidelines, such as restricting the size of banners and where and when they can be hung.”

Franke, a fellow of the National Association of College and University Attorneys, and a trustee of AAUP's Academic Freedom Fund, said that one of the main free speech areas of concern involves offensive speech and the difference between the free speech rights of high school and college students.

“In high school, students up to a certain age are legally required to attend, and it is place where information is basically fed into students,” Franke said. “A university has two main goals -- to create independence of mind and to allow students to explore and advance knowledge and creative activity.”

When it comes to dealing with offensive speech, universities walk a fine line between protecting free speech rights and the rights of those who are offended, Franke said.

“When faced with certain activities that are considered offensive, the strategies of some universities are to shut down the activity and suppress it with censorship,” Franke said. “This is not generally the best strategy. It is better to air them out and deal with them by ignoring such offensive activities or countering them with opposing points of view, such as a parody.”

Sponsored by Provost Tom Apple, the UD chapter of the American Association of University Professors, and the Legal Studies Program, the event followed a well-attended noontime forum for faculty and staff on recent court decisions affecting the free-speech rights of faculty at public universities.

The forum focused on a controversial 2006 Supreme Court decision -- Garcetti v. Ceballos -- holding that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and can be disciplined based on the content of their remarks.

“The question of immediate interest,” White said, “is whether the court's decision in Garcetti poses a threat to the traditional academic freedom faculty members enjoy when they conduct their classes and produce their scholarly work.”

White pointed out that the court specifically reserved that question for subsequent case-law development -- and that in at least one case lower courts have interpreted Garcetti to mean that a faculty member cannot be disciplined based on her answer to a question posed by one of her students in class.

“While Garcetti is not good news for public employees generally,” White concluded, “we have no reason to believe that it will necessarily trump traditional concepts of academic freedom when applied to the teaching and research activities of college and university faculty members.”

Joining White as a presenter for the earlier event was Rachel Levinson, senior counsel to AAUP, where she oversees the efforts of the organization's legal office. The discussion featured a comprehensive report on academic freedom issued by the AAUP's Committee on Academic Freedom and Tenure.

Article by Jerry Rhodes
Photos by Evan Krape