A federal trial court in Kentucky recently issued a decision addressing a student’s free speech challenge to a professor’s authority to control classroom discussion. While not binding in Oregon, the case presents an interesting and informative description of the legal authority of university faculty to direct classroom discussion. The Office of the General Counsel, therefore, is providing the campus with this case brief in the hopes that members of the campus community will find it useful.
Background on student free speech
Student free speech is protected by state and federal law (the First Amendment of the United States Constitution and Article 1, Section 8 of the Oregon Constitution) and UO policies.
The substantial disruption standard is most familiar in academic contexts. Federal courts have held that schools can restrict speech based on its content if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” (Tinker). Key cases have addressed: wearing black armbands in a peaceful, silent, non-disruptive protest of war (protected) (Tinker) (high school); lewd, indecent or offensive speech at a high school student assembly (unprotected) (Fraser) (high school); and holding up a sign at a school-sanctioned event that could be construed as encouraging illegal drug use (unprotected) (Morse) (high school). The Supreme Court hasn’t fully resolved how these cases apply in the university context.
The Kentucky case addressed a student claim to free speech in the classroom (and on an assignment)
The Kentucky case held that a professor did not violate a student’s free speech rights by terminating the discussion, which had veered off-topic, and removing students’ online posts, where the professor was motivated by a desire to restore order in the classroom.
According to the court’s decision, a university professor assigned students the task of posting to a forum about police leadership qualities. One student posted a quote that invoked Hitler, and subsequent posts evolved into a discussion on political correctness. Based on the fact that students had begun “discussing a subject which had nothing to do with the initial assignment nor was related to preparation for their final examination in the course,” the professor removed the discussion thread. The student sued. The student argued, among other things, that removing the thread violated the student’s First Amendment free speech rights. The student did not prevail.
The court summarized the student free speech framework as follows: “(1) … a school may categorically prohibit vulgar, lewd, indecent, or plainly offensive student speech, (2) … a school has limited authority to censor school-sponsored student speech in a manner consistent with pedagogical concerns, and (3) …regulation [is otherwise allowed] only when the school reasonably believes that the speech will substantially and materially interfere with schoolwork or discipline.” The court placed classroom discussion within the second category of speech.
The court explained that contrary to the student’s argument, in a classroom setting, or in other school-sponsored speech fairly characterized as part of the school curriculum, professors can exercise editorial control. The standard is whether the decision to edit is reasonably related to legitimate educational concerns. Supporting its decision to dismiss the lawsuit, the court noted that the professor’s “decision to intervene and remove the thread was tied to the fact that it had gone off topic, [and] it was legitimately related to the educational purpose of moderating an educational discussion on the subject of police leadership qualities and the legitimate pedagogical concern of keeping the students on topic and on task in their on-line discussion.” In other words, a professor can control or restrict the content of the discussion in the classroom as long as there’s a valid educational purpose.
On October 10, 2018, the Court of Appeals for the 6th Circuit upheld the decision and held that schools may limit classroom speech to avoid interference with academic discipline and instruction.
Two notes of caution
To the extent prior cases involve secondary school students, their rationale may not entirely apply in college where many of the students are adults. Cases that acknowledge schools’ prerogative to protect students based on their maturity levels are distinguishable from a university context that thrives on open, vigorous, and challenging debate; however, courts have recognized that an institution’s legitimate interest in limiting student speech to that which is relevant to an academic assignment does not diminish with age, and is equally applicable in the higher education context. The Kentucky case involved a university student, but the foundational cases do not.
Also, though a professor’s freedom to set classroom discussion parameters is broad, here is a note of caution about viewpoint neutrality: while one court has noted that academics permissibly “routinely require students to express a viewpoint that is not their own in order to teach the students to think critically,” a student’s on-topic response to an assignment inviting various opinions must not result in the student being penalized because of the viewpoint expressed. What is reasonably related to legitimate pedagogical concerns is context-specific, and may not serve as a pretext for punishing race, gender, economic class, religion or political persuasion.
Impact on the University of Oregon
For various reasons, including the posture and location of the case, the decision changes nothing here. UO already extends robust protections for free speech and academic freedom to students. The UO policy on Academic Freedom explains that UO “encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to the university community.” The UO policy on Freedom of Inquiry and Free Speech commits the University to a higher and more open standard of free speech than in private settings, and explains that its free speech commitment extends to faculty, staff, and students.
The Kentucky decision is consistent with UO’s policy on Academic Freedom (“Matters brought up in class should be related to the subject of courses or otherwise be educationally relevant, as determined primarily by the faculty member in charge of the class.”). UO policies recognize that students have the right to academic freedom, that academic freedom includes the right to question or criticize institutional policy whether acting as individuals or in official capacity, and that presenters, audience members, and protesters have the right to speak, listen and/or engage. UO’s explicit commitment to student academic freedom, along with its robust protections for freedom of speech, are special.
Free speech rights are of paramount concern, but they’re not without limits. UO has policies and procedures dedicated to ensuring students retain access to a quality learning experience consistent with an environment open to vigorous debate and critical inquiry. Public universities throughout the United States continue to educate students about the difference between less (or un)protected speech (i.e., incitement to imminent illegal action, child pornography, defamation, fraud, true threats) and protected speech (e.g., hate speech, offensive speech, giving someone the finger), and confusion can be compounded in Oregon where some speech that receives less protection under federal law is more protected under the Oregon Constitution (i.e., some fighting words). Context can make a difference, and the fact that speech is protected does not mean that it is welcome. Protected speech can be proscribed when the vehicle for expression is vandalism; UO can lawfully take action if the conduct at issue involves targeted harassment that creates a severe and pervasive hostile environment.
UO offers resources for classroom management. The Office of the General Counsel will work with campus clients to foster equity and inclusion while protecting academic freedom, free inquiry and free speech.
- By Jessica G. Price, Associate General Counsel