Most often schools ban speech in the name of combating “harassment.” For example, Drexel University, in Philadelphia, bans “inconsiderate jokes” and “inappropriately directed laughter,” while Northeastern University states that that no student may use the Internet to “[t]ransmit or make accessible material, which in the sole judgment of the University is offensive. . . ” Harvard can punish “Behavior evidently intended to dishonor such characteristics as race, gender, ethnic group, religious belief, or sexual orientation,” and Colorado State University’s Residence Hall Handbook bans “expressions of hostility against a person or property because of a person’s race, color, ancestry, national origin, religion, ability, age, gender, socio-economic status, ethnicity, or sexual orientation.” While these codes may be passed with good intentions, following the actual language of such a code would ban even the most commonplace criticism like “the university panders to rich kids,” “I am tired of the religious right,” or “men are pigs.” Of course, because such codes are impossible to enforce across the board — as virtually everyone would be guilty of violating them at some point — they remain on the books to warn students to tread lightly, and so that administrators can resuscitate them as needed.
Despite their pervasiveness, though, speech codes at public universities are flat-out unconstitutional. Public universities are state actors, and are thus bound to uphold the Constitution, including — you guessed it! — the First Amendment.
While hardly sympathetic, federal courts have deemed even offensively themed parties protected expression in public colleges and universities. The First Amendment does not require inaction against offensive expression, however; it only prevents official punishment. When word of parties such as the one hosted at John Hopkins by Justin Park’s fraternity gets out, it often generates passionate condemnation, causing the students to apologize. While the “meeting speech with more speech” approach may not be fully satisfying to many who want to see expressions of racism or intolerance stamped out, exposing speech we regard as ignorant or offensive to the public may be the best way to combat it while protecting our essential freedoms.
That speech codes at public universities still exist is a legal wonder, considering that no less than six federal cases nationwide have struck them down as unconstitutional. The US Supreme Court has yet to hear a university speech-code case, but the thrust of First Amendment law over at least the last 40 years leaves virtually no doubt that such codes would be overturned if they reached the Court. In Papish v. Board of Curators of the University of Missouri, for example, a 1973 case, the Supreme Court explicitly held 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.’ ” And in Healy v. James, a Supreme Court ruling from 1972, the Court announced that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” making clear that “[t]he college classroom with its surrounding environs is peculiarly the marketplace of ideas.” Given how extensive and clear the precedent regarding the unconstitutionality of speech codes is, it is stunning how many public universities still maintain speech codes, including, in some cases, codes identical to those declared unconstitutional at other universities. It seems as if many universities will not rewrite their codes to comply with the First Amendment unless directly challenged. That means that thousands of colleges and universities can rest assured that their codes are safe for the time being.