First Amendment Issues Involving Students:

The First Amendment & Higher Education Students:
The Secular Cases Page XXX

Public Universities and the marketplaces of Ideas:

An Inventory of students’
First amendment Secular cases

© 2000

Perry A. Zirkel

University Professor of Education and Law

Lehigh University

111 Research Drive

Bethlehem, PA 18015

(tel. 610/758-3239)

e-mail:

Presentation at the 21st Annual National Conference on Law and Higher Education

Stetson University College of Law

Clearwater Beach, FL — February 2000

The First Amendment & Higher Education Students:
The Secular Cases Page XXX

The First Amendment and Higher Education Students:

Part II, The Secular Cases

Perry Zirkel

© 2000

This annotated outline is the second of two parts presenting a comprehensive inventory of the modern First Amendment cases law concerning students in higher education.[1] This second part provides the cases that are based on the First Amendment freedoms of expression, assembly/association, and the press, rather than the two clauses -- establishment and free exercise -- that are specific to religion.[2] "Modern" in this context refers to published decisions after the Supreme Court's decision, 30 years ago, in Tinker v. Des Moines Independent Community School District.[3] Although the context of this decision was elementary/secondary, rather than postsecondary, education, it had an evident impact on the subsequent First Amendment expression court decisions in higher education, as is noted in illustrative case entries in this inventory.

Kept to a relative minimum, the acronyms or abbreviations in the cases blurbs are as follows:

Am. I Ass’n = First Amendment freedom of assembly/association

Am I Est. Cl. = First Amendment establishment clause

Am. I FE = First Amendment free exercise clause

Am. I Press = First Amendment freedom of assembly

Am. I Speech = First Amendment freedom of expression

Am. XIV = Fourteenth Amendment

cf. = citation signal for different but analogous ruling[4]

IHE = institution of higher education

As in Part I, the case blurbs are organized into operational topics and subtopics, such as student fees for umbrella students organizations and for particular student organizations. Within each of these subtopics, the citation of the court's decision is preceded by one of the following outcome symbols designating the direction of the judgment in relation to the First Amendment clauses(s) at issue:

+ = final judgment in favor of constitutionality of the challenged action or policy

(+) = inconclusive judgment (e.g., preliminary injunction or disposition on other grounds) in favor of the challenged action or policy

+/- = split rulings on the constitutionality of the challenged action or policy

(-) = inconclusive judgment against the challenged action or policy

- = final judgment against constitutionality of the challenged action or policy

These introductory signals are only quick classifications for cursory trends analysis; the problems that warrant closer examination include whether the institution's challenged policy or action was in favor or against student expression or association. Similarly, on some occasions the First Amendment rights are countervailing, such as where First Amendment establishment clause is a purported defense for institutional infringements on student expression.[5]

The entry for each case includes a brief summary of the court's pertinent ruling(s), including clarification as to the type of institution. In most cases, the IHE is public, in light of the need for "state action" to trigger the First Amendment. Occasionally, however, the state action is provided by the challenged activities of the police.[6]

Finally, the decisions by the U.S. Supreme Court are listed in bold typeface in light of their national jurisprudential importance. Perhaps the most famous of these decisions is Healy v. James,[7] which tended to at least partially replace Tinker.

Overall, the contents of Part I reveal a much higher volume than that of the religion-related caselaw in Part I; approximately 130 as compared with approximately 35 published court decisions. The volume has decreased in each successive decade, starting at a high point of approximately 60 cases in the 1970s and ending with approximately 25 in the 1990s. The court vindicated the constitutionality of the defendant government’s or institution’s policy or action in an estimated 50 percent of the conclusive decisions to date. Finally, the issues have varied widely, with the academic programs category being relatively limited and recent.

Financial Aid

• TO SECTARIAN IHEs[8]

+ Columbia Union College v. Clarke, 159 F.3d 151, 130 Ed.Law Rep. [391] (4th Cir. 1998), cert. denied, 119 S. Ct. 2357 (1999)

• upheld denial of grants to pervasively sectarian IHE as not violating Am. I. Speech (or Est. Cl.)

• TERMINATED FOR CONTROVERSIAL EXPRESSION

+ Marcum v. Dahl, 658 F.2d 731 (10th Cir. 1981)

• upheld constitutionality (Am. I Speech) of nonrenewal of athletes' scholarships where they commented to the press that they would not play if the head coach was rehired (not substantial factor)

Student Fees

• FOR UMBRELLA STUDENT ACTIVITIES ORGANIZATION

+/- Good v. Associated Students of Univ. of Washington, 542 P.2d 762 (Wash. 1975)

• upheld constitutionality (Am. I Ass'n) of mandatory service and activities fee but rejected constitutionality of mandatory membership in student activities organization

+/- Smith v. Regents of Univ. of California, 844 P.2d 500, 80 Ed.Law Rep. [248] (Cal. 1993) cert. denied, 510 U.S. 863 (1993), further proceedings, 65 Cal. Rptr. 2d 813, 119 Ed.Law Rep. [1106] (Ct. App. 1997)[9]

• upheld constitutionality (Am. I Ass'n/Speech) of public IHE’s mandatory student activities fee, but required partial refund for students objecting to use of their fees for political and ideological activities, whereupon the test is whether the educational benefits are merely incidental to the activity’s primary function of advancing political or ideological interests (and the narrowly drawn, or least drastic, means is the same as, not an addition to, this test)

- Southworth v. Grebe, 151 F.3d 717, 128 Ed.Law Rep. [624] (7th Cir. 1998), cert. granted sub nom. Board of Regents v. Southworth, 119 S. Ct. 1332 (1999)

• held that use of public IHE’s mandatory student activity fee to fund private organizations that engaged in political and ideological activities violated Am. I. Speech (but that the lower court’s opt-out remedy was overbroad)

• OF PUBLIC INTEREST RESEARCH GROUPS (PIRGs)

- Galda v. Rutgers, 772 F.2d 1060, 27 Ed.Law Rep. [683] (3d Cir. 1985), cert. denied, 475 U.S. 1065 (1986)

• held that public IHE’s policy funding politically active organizations (PIRGs) via a separate, mandatory but refundable student fee violated Am. I Speech of objecting students -- lack of compelling interest in the organization's contribution to the university forum

+ Carroll v. Blinken, 957 F.2d 991, 73 Ed.Law Rep. [376] (2d Cir. 1992), cert. denied, 506 U.S. 906 (1992), further proceedings, 42 F.3d 122, 96 Ed.Law Rep. [328] (2d Cir. 1994)[10]

• held that funding of PIRG from public IHE's mandatory student activity fee does not violate Am. I Speech, but that PIRG may not define its membership to include objecting students

+ Rounds v. Oregon State Bd. of Educ., 166 F.3d 1032, 132 Ed.Law Rep. [72] (9th Cir. 1999)

• held that funding of PIRG from IHE’s mandatory, student activity fee does not violate Am. I speech or Ass’n where membership in the PIRG is voluntary and its activities fit within IHE’s educational mission

• FOR LEGAL SERVICES[11]

+ Maryland PIRG v. Elkins, 565 F.2d 864 (4th Cir. 1977), cert. denied, 435 U.S. 1008 (1978)

• upheld constitutionality (Am. I Speech) of public IHE preventing the use of student activities fees for litigation by PIRG

(+) Arizona Bd. of Regents v. Zappia, 577 P.2d 735 (Ariz. App. 1978)

• affirmed dismissal, due to lack of standing (“no existence separate and apart from the University”), student organization’s Am. I challenge to public IHE’s refusal to allow it to hire its own legal counsel

• FOR STUDENT RELIGIOUS GROUPS[12]

+ Tipton v. University of Hawaii, 15 F.3d 922, 89 Ed.Law Rep. [441] (9th Cir. 1994)

• upheld constitutionality (Am. I Speech and Est. Cl.) of public IHE’s policy of not funding student organizations that would use the funds to promote a particular religious point of view, even if in a secular context

- Rosenberger v. Rector and Visitors of Univ. of Virginia, 115 S. Ct. 2510, 101 Ed.Law Rep. [552] (1995)

• held that public IHE’s denial of use of mandatory student fees to support religious organizations, where the other use of these fees constituted a limited public forum, violated Am. I Speech (and FE)

• FOR OTHER PARTICULAR STUDENT ORGANIZATIONS[13]

+ Lace v. University of Vermont, 303 A.2d 475 (Vt. 1973)

• upheld constitutionality (Am. I Speech) of use of public IHE’s mandatory student fees to support student newspaper, speakers bureau, and other such activities

+ Veed v. Schwartzkopf, 353 F. Supp. 149 (D. Neb. 1973), aff'd mem., 478 F.2d 1407 (8th Cir. 1973), cert. denied, 414 U.S. 1135 (1974)

• SAME

+ Larson v. Board of Regents, 204 N.W.2d 568 (Neb. 1973)

• upheld constitutionality (Am. I Speech) of use of public IHE’s mandatory student fees to support student newspaper that constituted an open forum

+ Arrington v. Taylor, 380 F. Supp. 1348 (M.D.N.C. 1974), aff'd mem., 526 F.2d 587 - (4th Cir. 1975), cert. denied, 424 U.S. 913 (1976)

• SAME

+ Hickman v. Board of Regents, 552 S.W.2d 616 (Tex. App. 1977)

• SAME

+ Kania v. Fordham, 702 F.2d 475, 9 Ed.Law Rep. [1158] (4th Cir. 1983)

• SAME

+ Turner v. Sayers, 575 So.2d 1135, 66 Ed.Law Rep. [883] (Ala. App. 1991)

• upheld constitutionality (Am. I Speech and Ass'n) of use of public IHE’s student activity fees to pay for speaker on abortion at student-sponsored lecture

+ Hays County Guardian v. Supple, 969 F.2d 111, 76 Ed.Law Rep. [355] (5th Cir. 1992), cert. denied, 506 U.S. 1087 (1993)

• upheld constitutionality (Am. I Speech) of use of public IHE’s mandatory student fees to finance student-run newspaper

(+) Curry v. Regents of Univ. of Minnesota, 167 F.3d 420, 132 Ed.Law Rep. [300] (8th Cir. 1999)

• rejected standing, as intervenors, of organizations that were the focus of the plaintiff-students’ Am. I (Speech) objections

Residence Halls

• GENERAL CANVASSING OR SOLICITATION

+ Brush v. Pennsylvania State Univ., 414 A.2d 48 (Pa. 1980)

• upheld public IHE’s prohibition of door-to-door canvassing (except by invitation or majority vote) as permissible time, place, and manner regulations, where there were alternatives of telephone, mail, and main lobby canvassing

+ Harrell v. Southern Illinois Univ., 457 N.E.2d 971, 15 Ed.Law Rep. [326] (Ill. App. 1983)

• upheld public IHE’s policy limiting door-to-door solicitation as reasonable regulation of time, place, and manner

+ Chapman v. Thomas, 743 F.2d 1056, 20 Ed.Law Rep. [51] (4th Cir. 1984), cert. denied, 471 U.S. 1004 (1985)

• upheld constitutionality of public IHE’s policy prohibiting door-to-door solicitation, where not a public forum[14]

• POLITICAL CANVASSING

(-) Jones v. Nelson, 349 F. Supp. 1061 (N.D. Ill. 1972)

• issued temporary restraining order, based on Am. I Speech, against public IHE regulation that conditioned door-to-door political canvassing in residence halls on a 2/3 vote of residents

+ National Movement for Student Vote v. Regents of Univ. of California, 123 Cal. Rptr. 141 (Ct. App. 1975)

• upheld, based on Am. I Speech (plus state statute), public IHE’s policy that prohibited solicitation of voter registration on dorm floors where students resided but that allowed it in main lobby

• COMMERCIAL SOLICITATION

(+/-) American Future Systems v. State Univ. of New York at Cortland, 565 F. Supp. 754, 12 Ed.Law Rep. [ 375] (N.D.N.Y. 1983)

• issued preliminary injunction against public IHE’s policy as applied to prohibit commercial sales transactions in rooms of inviting students but not as applied to prohibit commercial sales demonstration in same

+ American Future Systems v. Pennsylvania State Univ., 618 F.2d 252 (3d Cir. 1980), ("AFS I"), 688 F.2d 907, 6 Ed.Law Rep. [888] (3d Cir. 1982), ("AFS II"), 752 F.2d 854, 22 Ed.Law Rep. [716] (3d Cir. 1984) ("AFS III"), cert. denied, 473 U.S. 911 (1985)

• upheld constitutionality of public IHE policy prohibiting commercial solicitation in common areas in residence halls and group demonstrations in students' dorm rooms

(+) Fox v. Board of Trustees, 492 U.S. 1169, 54 Ed.Law Rep. [61] (1989), on remand, 42 F.3d 135, 96 Ed.Law Rep. [338] (2d Cir. 1994), cert. denied, 515 U.S. 1169 (1995)

• held that public IHE’s ban on commercial activity in dorm rooms was narrowly tailored and based on legitimate interest and need not be least restrictive alternative, but upon remand, on the question of whether the noncommercial aspect was overbroad, the case was found to be moot

• RESIDENT ADVISORS (RAs)

- Shelton v. Trustees, 891 F.2d 165, 57 Ed.Law Rep. [756] (7th Cir. 1989)

• upheld nonrenewal, as not violating Am. I Speech, of RA who insubordinately refused to stop displaying his unbolted AR-15 automatic rifle in his dorm room

+ Teta v. Packard, 959 F. Supp. 469, 117 Ed.Law Rep. [1055] (N.D. Ill. 1997)

• rejected alleged retaliation (Am. I Speech) claim of student whom RA charged with battery

Student Organizations[15]

• DISCIPLINE GENERALLY

- Pickings v. Bruce, 430 F.2d 595 (8th Cir. 1970)

• invalidated, based on Am. I Speech, administrative sanctions of student organization for writing letter to off-campus church, questioning its policies on integration, and for refusing to cancel a speaking engagement where no concrete proof of material and substantial disruption (Tinker)

• DISCIPLINE -- FRATERNITIES

- Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 83 Ed.Law Rep. [43] (4th Cir. 1993)

• held that public IHE's discipline of fraternity for sponsoring "ugly women" and racist dress events violated Am. I (Speech)

+ Pi Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 58 F. Supp2d 619, 137 Ed.Law Rep. [216] (W.D. Pa. 1999)

• ruled that public IHE’s indefinite suspension and withdrawal of recognition of fraternity in the wake of disciplinary violations, including illegal drug activity, did not violate Am. I Ass’n

• DENIAL OF RECOGNITION/ACCESS -- GAY GROUPS[16]

- Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972)

• held that public IHE’s denial of use of its facilities for gay groups’ conference and dance violated Am. I Speech and Ass’n

- Gay Students Organization v. Bonner, 509 F.2d 652 (1st Cir. 1974)

• held that public IHE’s reversal of recognition for gay group violated Am. I Speech and Ass'n

(-) University of New Hampshire v. April, 347 A.2d 446 (N.H. 1975)