Student Free Speech on Campus: Disciplinary Risk for Student Protesters at Private Universities

Ruth O'Meara-Costello

In the past month, students at many universities have taken part in massive protests calling, among other things, for a ceasefire in Gaza. Other students have attended counter-protests, or organized quieter demonstrations in support of Israel. This post is not, in any way, about the merits of opposing views on the war in Gaza. My area of expertise concerns student speech rights, their limits, and when and how schools can and should discipline students for speech-related conduct.

First, the very basic law: students at public schools have a constitutional, First-Amendment right to exercise their freedom of speech on and off campus. The seminal Supreme Court case on this is Tinker v. Des Moines Independent School District, holding that a public school could not discipline students wearing black armbands to protest the Vietnam War. Private universities are not bound by the First Amendment. Both public and private universities, however, generally have a contractual obligation to abide by the student conduct policies that they promulgate to students. That means, broadly, that if they promise students freedom of speech, universities must not discipline students for exercising that right. It also means that students should not be disciplined for lawful conduct that the university has not proscribed in its code of conduct or other disciplinary policy.

As you might expect, university policies touching on speech vary widely in their detail and thoughtfulness. Thinking just of Boston-area schools, Harvard has a University-Wide Statement on Rights and Responsibilities that states, among other things, that “reasoned dissent plays a particularly vital part” in the existence of the University, and that, “The University must affirm, assure and protect the rights of its members to organize and join political associations, convene and conduct public  meetings, publicly demonstrate and picket in orderly fashion, advocate and publicize opinion by print, sign, and voice.” In other words, Harvard students have a right to expect that the University will not discipline them for joining or organizing protests or for otherwise voicing their opinions.

That said, Harvard’s policy also has caveats—quite a few caveats. First, it is clear that all members of the community have rights to “freedom of speech and academic freedom, freedom from personal force and violence, and freedom of movement”—interfering with the rights of others, even if in the context of a protest, is forbidden. Second, “interference with members of the University in performance of their normal duties and activities” is specifically forbidden (meaning, as discussed further in an interpretive statement following the policy, that occupying buildings is a disciplinable offense). Fourth, “theft or willful destruction” of property of the university or its members is forbidden.

Finally, an interpretive addition to the policy clarifies that “intense personal harassment of such a character as to amount to grave disrespect for the dignity of others” is “an unacceptable violation of the personal rights on which the University is based.” This is the kind of statement that has, at many universities, been used to punish speech with which the university disagrees, by painting that speech as “harmful” to groups of students. I would read Harvard’s policy, with its reference to “personal” harassment, as providing some protection from such an application.

Some other Boston-area schools also have policies discussing academic freedom on their campuses. Brandeis has Free Speech and Free Expression Principles, which promise students free expression, but also clearly state that physical violence or the prevention of speech as unacceptable, and that the university may restrict speech that is illegal, defamatory, genuinely threatening or harassing, that invades privacy or confidentiality interests, or that otherwise is “directly incompatible with the functioning of the university. Boston University has a Statement on Free Speech and Expression that claims that these values are “central to the mission” of the University, but that the University may restrict the time, place, and manner of speech, and may restrict speech that “breaks the law, violates University policies or codes of conduct, or is otherwise directly incompatible with the safety of the community or the functioning of the University.” By contrast, some schools have no policy regarding freedom of speech or expression whatsoever; Boston College is in this category as far as I can ascertain from the materials it makes available on its website.

The bottom line here is that many but not all private universities have policies that promise free speech, but make it clear that behavior that otherwise violates university rules will not be exempt from discipline simply because it is also expressing a political opinion. Students who, for example, tear down posters, attack counter-protesters, disrupt university events, or occupy buildings should absolutely understand that they are risking disciplinary action. Students do, however, have a reasonable expectation that they will not be disciplined for activities like attending or organizing protests (even for unpopular causes), expressing opinions in academic work with which faculty or the university disagree, or discussing political opinions in any context.

Universities should apply these principles without regard to the nature of the opinions that students are expressing. In practice, many universities either do not have content-neutral policies governing disciplinary cases that involve free speech, or do not apply their existing policies in a content-neutral way. Student conduct provisions regarding “disruptive” or “disorderly” conduct are easily used at the discretion of university administrators to punish speech that they dislike. My experience has been that many schools are more likely to discipline student protesters who violate university rules, or to discipline them more severely, if their cause is unpopular on campus. Disciplinary decisions in these matters can often feel driven by public relations concerns rather than straightforward applications of college policy. Having experienced legal help can be essential to navigate these situations. If you are facing discipline for campus advocacy, contact my office to set up a consultation.


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