Q
: I posted some helpful information on a public college’s online-class forum and was threatened with expulsion. The forum is in an asynchronous online class where any student is allowed to share; not in a class-assignment area. I need advice on how to protect myself.
A: Your inquiry raises some interesting questions regarding the First Amendment and what is commonly referred to as “student speech.”
While students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), the First Amendment rights of public school students “are not automatically coextensive with the rights of adults in other settings” and must be “applied in light of the special characteristics of the school environment.” Hazelwood School District v. Kulhmeier, 484 U.S. 260, 266 (1988) (internal quotations and citations omitted).
As the Supreme Court stated in Hazelwood: “The question whether the First Amendment requires a school to tolerate particular student speech … is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.” Id. at 270-71.
The second form of student expression is subject to the exercise of greater control by educators “to assure … that the views of the individual speaker are not erroneously attributed to the school.” Id. at 271. Schools also have latitude to prohibit speech that is vulgar, lewd, or obscene. See Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
The California Legislature has enacted a series of laws protecting freedom of speech and freedom of the student press at California schools, including public colleges and universities such as Los Angeles Southwest College.
California Education Code § 76120 provides community college students “the right of … free expression including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, and the wearing of buttons, badges, and other insignia…” but allows school officials to restrict or punish expression if it is “obscene, libelous, or slanderous” or material “which so incites students as to create a clear and present danger of the commission of unlawful acts on community college premises, or the violation of community college regulations, or the substantial disruption of the orderly operation of the community college.”
California Education Code § 66301 provides that the governing board of a community college district and/or an administrator of a campus of a community college district are prohibited from making or enforcing “a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication” that, if engaged in off campus, is protected from government restriction by the First Amendment.
First Amendment principles generally come into play whenever a government actor attempts to restrict speech. Whether there is an actual constitutional violation, however, is extremely fact specific. As background, where public spaces are concerned (i.e., streets, sidewalks, parks, and general meeting halls), governmental entities are permitted to make and enforce reasonable time, place, and manner restrictions, so long as they are content-neutral and narrowly tailored to serve a significant government interest.
Your inquiry is necessarily fact specific – both in terms of whether the online webpage could be considered a public forum or a limited public forum and in terms of the type of speech involved. Generally speaking, unless certain types of speech are involved (i.e obscenities, libel, slander, threats, etc.), schools must generally not regulate the content of the speech, and any restrictions must be content-neutral and narrowly tailored to serve a significant interest of the school. If the online webpage for the class were to be considered a public forum, the school’s retaliation for the speech on that forum (whether it be threatened expulsion or the lowering of a grade) would be especially concerning.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.