Campus Speech and Demonstration Guidelines and Considerations

When it comes to campus speech, colleges and universities must balance competing needs that are sometimes at odds: encouraging open conversations that propel learning while protecting the community from harassing speech.

Use your campus speech and demonstration policy to clarify your institution’s stances and reinforce legal requirements.

First Amendment and Contract Law

Public institutions are considered government agents. As such, the First Amendment requires them to allow most speech with some limitations. (See the Time, Place, and Manner Limitations section below for more detail on some allowed limitations.)

Although private institutions aren’t subject to the First Amendment, many have adopted free speech principles. Courts also may find that private institutions voluntarily assumed First Amendment or similar obligations based on statements committing to freedom of speech made in:

• Student handbooks
• Free expression policies
• Harassment policies
• Academic freedom policies

Statements a private institution makes about its commitment to free speech are important. When drafting these statements, work with legal counsel to ensure the language doesn’t create additional liability.

Time, Place, and Manner Limitations

Public and private institutions can place reasonable limitations on where and how speech is made, provided the decisions are “content neutral” and make available alternative forums for speech.

Create time, place, and manner policies that apply regardless of the message being conveyed. Ensure these policies are applied consistently.

Considerations for your time, place, and manner requirements include:

• A statement on your principles of free expression
• Notice and scheduling requirements in advance of events
• Reasonable limits on locations for posters, chalking, and other displays
• Prohibiting or limiting encampments

In addition, your time, place, and manner policy should:

• Be viewpoint neutral.
• Reasonably limit locations for demonstrations so they aren’t allowed in private spaces, including during events held by other groups.
• Reasonably limit disruptions to the rights of others in private spaces through amplified sound.

When creating or updating your policy, engage the community and get buy-in for your decisions.

Hostile Environment and Title VI

Public and private institutions are legally obligated to abide by Title VI of the Civil Rights Act of 1964. Recently, the Department of Education’s Office for Civil Rights (OCR) has aggressively enforced Title VI following a slew of complaints. OCR has long held that discrimination based on shared ancestry, including Jewish ancestry, is covered by Title VI. Generally, OCR has a broad view of what constitutes a hostile environment and how it expects colleges and universities to address these complaints.

Several letters of resolution document what OCR finds to be a hostile environment as:

• Severe, pervasive, or objectively offensive speech

The speech doesn’t need to target a particular student. Generalized speech against a protected class also requires a response from the institution.

Take these actions to prevent and respond to allegations of a hostile environment and discrimination:

• Ensure you have a publicized system for reporting hostile environment or discrimination allegations based on a protected class.
• Offer a responsive action, including offering the affected student support, when a hostile environment or discrimination is reported.
• Document all reports and your response efforts.

More From UE

Campus Speech: A Discussion of Policies, Protests, and Encampments

Institutional Approaches to Hate Speech