Q: I have run into some First Amendment issues on my college campus. My participation in basic First Amendment activity has resulted in threats of disciplinary action and I also have been denied access to public records. Do First Amendment rights apply to college campuses?
A: The First Amendment generally applies only to restrictions on speech by government actors; accordingly, the following analysis applies only to public schools, not private institutions.
Campus speech involves all sorts of interesting issues, some of which have been addressed by the Supreme Court, and others that have not. In cases involving speech at public high schools, the Supreme Court has provided some guidance. The Court has made clear that although students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” Tinker v. Des Moines Indep.Cmty. Sch. Dist., 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,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
It is still an open question as to whether these principles apply to college campuses, but presumably, Free Speech rights would be greater on a college campus than a high school campus.
Very generally speaking, free speech gets more protection when someone’s opinion is being expressed. Restrictions on speech tend to be problematic when they constrain the content of one’s opinion or viewpoint. A restriction not based on the content of speech or the viewpoint being conveyed (a “content-neutral” restriction) is more likely to be considered compatible with the First Amendment.
In the Tinker case, a high school banned armbands after learning that students planned to wear black armbands to protest the Vietnam War. The Supreme Court treated the wearing of armbands as a form of speech – an expression of opposition to the war –and found the ban on armbands to be a prohibition of a particular expression of opinion. The Court said that in those circumstances, the ban on armbands required a showing of “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”
In a more recent example, school officials prohibited students from wearing American flag shirts during a school Cinco de Mayo, based on the assumption that the shirts would likely cause disruption due to prior incidents between Anglo- and Mexican-American students. In this case, requiring students to remove or obscure the flags from their clothing did not violate their First Amendment rights. Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764 (9th Cir. 2014).
And in a case originating in South Carolina, a federal Court of Appeals held that the First Amendment permitted the prohibition of Confederate flag shirts where incidents of racial tension made it reasonable to predict that conflict would result. Hardwick v. Heyward, 711 F.3d 426, 439-40 (4th Cir. 2013). In sum, whether a student’s First Amendment rights have been violated is necessarily a very fact-specific inquiry.
It sounds like you are also having trouble obtaining access to public records; I am sorry to hear that the school has not been responding to your requests. Under the California Public Records Act (PRA), public records—which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e)—are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. Again, though, the PRA will only apply if your school is a public institution, and not a private one.
Under the PRA, the agency from whom you requested the records is required to let you know whether it has records in its possession that are responsive to your request, and also cite any exemptions it is claiming and describe how those exemptions apply to the records that you seek. Gov’t Code § 6253(c). I am not sure what type of records you are seeking, but the PRA does contain multiple exceptions.
It is possible that the agency is withholding the documents under one of those exceptions. However, you can remind the agency that both the PRA and court decisions interpreting the PRA require the law and its exemptions to be narrowly construed in favor of disclosure.
Additionally, if the agency did not provide you with any sort of explanation as to why it denied the request, you should also point out its duty to do so and request a detailed explanation. This will give you the information necessary to make your case as to why they may
be wrong about any claimed exemption.
You can find more information about how to submit a Public Records Act request, including a sample letter, at this link on the FAC website.
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.