The History of Our Country Is Rich with Stories About the Evolution of the American People

Murphy - 1

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”

Daniel Murphy

September 27, 2004

AHRD 670

Dr. Al Menard

The history of our country is rich with stories about the evolution of the American people and the rules that govern the United States of America. One thing that has remained constant over the past 200 years is a dedication to the protection of certain inalienable rights that make up the core of freedom in America. Some of our founding fathers, namely George Mason and James Madison, saw the need to put some of these rights into writing. At the time, many of their ideas were considered commonplace, but they wanted to set up a document that would outline these ideas in hopes of reaching consensus throughout the states.

This Bill of Rights, as it was called, added the first ten amendments to the Constitution. On December 15, 1791, the last of the states ratified these amendments and they became a foundation for years of judicial and political debate. The First Amendment has received a lot of attention and criticism over the years. The amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.” (

With the rise of the Civil Rights and Free Speech Movements of the 1960s, the world of Higher Education was drawn into the battle over the meaning of the First Amendment. This stronghold of freedom has a significant place at the table of institutions of American higher education. The rest of this paper will discuss the meaning of the First Amendment, how the First Amendment plays out in American higher education, and what professionals in the field can do to avoid infringing on the rights of others.

Religion

There are two clauses in the First Amendment that deal with religion. These clauses protect a persons right to establish a religion and practice their religion in any way that does not infringe on the rights of others. In the world of higher education, the protection of this right plays out differently between public and private institutions. Public schools cannot establish a religion or prohibit the exercise of religion on their campuses. Some institutions attempted to ban all religious organizations from practicing on campus, but this practice was also found to be in violation of the student’s First Amendment rights. Father Grace, Catholic Campus Minister, commented, “If a religious population exists on our campus, it is our duty to serve that community.” (Interview on September 13, 2004) These public schools cannot force their student population to take part in religious services, but once the door is opened to a religious group to meet or hold services on campus, the college community must be willing to allow other religious groups on campus for the same purpose.

Private institutions are run under a different set of guidelines. For the purpose of this discussion, those “private” schools that receive any form of state money shall be considered public. These private schools can promote their own religion and forbid the practice of other religions on its campus. There is no requirement of the school to remain neutral on the issue of religion. Some cases have seen there way to the courts, but judges are often cautious to get involved in cases regarding private institutions because of they usually tend to “involve the court in the interpretation of religious doctrine or in the process of church governance.” (Kaplan & Lee, 1995) This process might put the courts in danger of violating the “establishment” clause.

Speech

The ability to speak one’s mind is the premise for the freedom of speech. Many of the issues that we will talk about regarding the First Amendment will surround the idea of freedom of speech. Father Grace and Dave Barnes, Director of University and College Centers, both agreed that freedom of religion and right to peaceably assemble are grounded in the freedom of speech. There are many different aspects of freedom of speech that can be found on a college campus.

In public institutions, faculty and staff are granted the right to speak their minds. This could take the form of commenting against their administration or teaching a controversial subject in the classroom. The idea of academic freedom has been around since the early 1900s. Tenure was created to protect instructors from the criticizing hand of administration. In today’s society, both tenure and the First Amendment will protect a faculty member in such cases. However, in the private sector, many institutions will sanction employees who teach against their doctrine. While private schools are encouraged to align themselves with the rights afforded in the First Amendment, they are not strictly held to them.

Student speech is one of the most carefully protected rights in the courts. Fred Hilton, Director of Media Relations, summed it up by saying that, “A university should be a market place for open ideas.” (Interview on September 14, 2004) Court rulings have suggested three principles of student’s free speech: expression cannot be prohibited because of disagreement with or dislike for its contents, expression is subject to reasonable regulation as to time, place, and manner, and expression can be prohibited if it becomes action that materially and substantially interfered with the normal activities of the institution or invades the rights of others. (Barr, 1988)

The idea of time, place, and manner was central to the free speech debate. As time has progressed, the time, place, and manner debate has become more of an idea than a way to practically measure if boundaries have been crossed. Time refers to when the act of speech takes place, the place component is where the act of speech took place, and manner is the way in which the speech was presented. James Madison University even developed a free speech zone located on the commons. Today, the university would not be able to limit free speech to that area because our First Amendment rights extend to all areas of a public institution.

Public institutions are located on public property. Therefore, anyone can come onto campus and exercise their rights to free speech as well. A perfect example is the itinerant preacher that will come to campus, set up shop, and then condemn everyone that passes to hell. Without fail, angry students crowd around him in mob-like fashion to exercise their own right to free speech. Eventually, a police officer will show up, and it’s that police officers job to protect the preacher, not the students. The university is doing their part to insure that the freedom of speech is not taken away from anyone. Speakers not affiliated with the university are all too common and more will be discussed in later sections.

Finally, it is worth noting that not all forms of speech are protected. Hate speech has come under greater scrutiny and those participating in hate speech have been sanctioned for such activity. Hate speech includes verbal and written words and symbolic acts that convey a grossly negative assessment of particular persons or groups based on their race, gender, ethnicity, religion, sexual orientation, or disability. It is highly derogatory and degrading, and the language is typically coarse. (Kaplan & Lee, 1995) On the flip side, it is important for colleges and universities to not get carried away with hate speech codes. They must not be so broad that free speech is limited.

Press

The freedom of the press is the closest thing to an absolute law in the United States. This freedom allows a paper to print ideas that may be unpopular. There have been very few instances where the courts have decided against a newspaper. The precedent that has been set is very impressive.

Private institutions again fall into a gray area. While they are not strictly held to the First Amendment, they are encouraged to adopt its principles into their community. Those administrations are allowed to regulate the output of their student presses and can sanction student newspaper employees for some of their views. Similarly, in public K-12 schools, content can be edited from student news.

Public colleges and universities, however, have very little control over their student press. Once an administration decides to establish a student press on their campus, all editorial exercises are taken out of their hands. These public institutions may not restrict material from being printed or fire an employee for letting an unpopular view go into the paper. Similarly, the administration cannot approve content before it goes to publication. This aligns with the idea of prior restraint.

Many attempts have been made by university officials to change the editorial control of the student press, including changing the funding structure of the paper, or removal of the paper all-together. In the end, the courts have a strong history of siding with the students.

Assembly

The First Amendment extends the right of people to gather peaceably to share their opinions and demonstrate to others. Student protests can be some of the most moving and powerful experiences. They can also be the most out of control. However, as Dave Barnes would put it, “If you can’t protest on a college campus, where can you?” (Interview on September 15, 2004) Many schools have established guidelines for their protests. This is a good risk management policy, but holding a protest to those guidelines would probably not hold up in court. Only when student protests clearly show disruptive behavior and get in the way of normal functioning of the university may students be punished. Either the protesters must themselves engage in conduct that is physically disruptive… or their words and acts must be directed to inciting or producing imminent disruption by others and likely to produce such disruption. (Kaplan & Lee, 1995)

The idea of time, place, and manner return in the debate over the right to assemble. Like the freedom of speech – time, place, and manner are losing ground in the courtroom battle. It is getting increasingly difficult for a college of university to regulate the activity of its students as long as it does not disrupt the business or learning functions of the university.

The right to assemble can also be linked with the freedom of religion. Religious groups have the right to assemble on campus, and it is the universities job to assure that all religious groups be afforded the same opportunities. This is the same idea with Student Organizations on campus.

First Amendment Issues on Campus

One of the greatest controversies in higher education is the freedom of the student press. While the student newspapers are a staple on most college campuses, administrators must be weary of their involvement with the student press. Like I said in previous sections, approving content should never take place, and removal of student press staff will land you nothing but a schedule of court dates.

The requirement and use of student fees has also been a huge debate. One of the most popular cases involved the University of Wisconsin. Students were opposed to their student fees being used to fund organizations that they found objectionable on political, ideological, or religious grounds. (Schmidt, 2000) The Supreme Court ruled in favor of the University. It was there job to ensure that all student groups are able to receive the same resources and that each member of the community contribute to that idea. This is no different than the tax system we have set up in the United States.

Students are becoming more political than they have been in the past. They are also becoming more idealistic and this combination is sure to lead to a greater use of their First Amendment rights. Student protests are commonplace on college campuses but the degrees of protest vary greatly. Students can gather in small groups on the commons, or as the case at Dr. Rose’s Inauguration, large numbers of students and staff can gather in the Quad.

Posting Guidelines are also something that the University sets forth in its institutional practices. The University requires that items be stamped for posting prior to putting them up around campus. Shannon Kennan explained, “we don’t approve the posters, but if there is objectionable material, I will talk to them about it.” (Interview on September 14, 2004) There are guidelines in place that prohibit businesses or off-campus groups from posting on campus and regulations regarding promotions using alcohol. Shannon wasn’t sure that any of those policies could actually hold up in court or not. Currently, the posters are just stamped with a removal date and places for posting are available all around campus.

Another issue on college campuses includes letting religious groups hold services on campus. When these groups are treated as a student organization, they cannot be denied the right to assemble on campus. At public institutions, it’s very important to remember that once you extend those resources to one religious group, you must be willing to offer the same resources to all of the religious groups on campus.

A classmate talked about one of their professors in undergrad that gave a one-day lecture on “The F-Word.” Many parents, and I’m willing to bet some university officials, may not agree with that practice. The professor is using the opportunity as a chance to teach the class about meanings and how definitions change through the culture of people using the word. There are professors all over the country that share the same practices and intend to make an educational experience out of it.

Many student organizations seek to bring in speakers from off campus. Sometimes, these speakers share viewpoints and express themselves in ways that go against other members of the society in which they live. Controversial speakers are often times the most attended and most protested events on a college campus. Dave Barnes shared many stories with me, one of which included a scenario where a student group brought a speaker on campus and he had to accommodate them. He was also charged with accommodating a group of students that wanted to protest the speaker being on campus. The juxtaposition of event attendees and protesters is always a concern for college officials.

Finally, a less commonly noticed practice takes place at college commencement ceremonies. At many schools, a benediction is a permanent practice in their commencement exercises. This practice will usually indicate either a value of the institution at the time or the values of the administration. Students could argue that the university was violating the establishment clause of the First Amendment.

Risk Management

The First Amendment can be a very tricky subject for administrators at the college level to get a grip on, however, there are some tips to help with managing the risk of violating some essential student rights.

First and foremost, it is important that everyone knows the law. When an individual knows what “rules they have to play by,” they are more likely to avoid making a decision that would violate that rule. Along with knowing the law, it will always be helpful to know what the policies and regulations of the university are. That way, you have a set of guidelines to follow when a situation happens.

Like most things, talking about the problem will help better prepare people for their roles in enforcing the First Amendment. Creating a dialogue about possible scenarios can be helpful to anyone in this field. Only when you’ve discussed a situation are you better prepared to handle it when the situation arises. It would be helpful to include other individuals who may have dealt with this problem in the past and can gain some insight from them.

A department in any college or university is never alone. Cooperating with other departments, such as campus police, will create a community of support to help you through tough decisions. They will also be able to assist you when carrying out plans.

When handling a situation, an administrator may get caught up focusing on the rights of only one party involved. It is important when making decisions about First Amendment related issues that the administrator keep the rights of all parties involved in mind.

Finally, sometimes it is helpful to establish a set of guidelines for student involvement in First Amendment related issues. While these policies may not help an institution in court, they are an invaluable resource when it comes to managing people and managing risk.

Summary

It is clear that an individual’s rights have been a concern from the founding fathers through the institutions of higher education today. Laws have been established to protect these rights. The First Amendment is the “closest thing we have to an absolute right.” (Conversation with Al Menard – September 16, 2004) The First Amendment protects us from the establishment of religion by the government, and allows us to exercise freely in our own religions. It also gives us the freedom of speech, the freedom of the press, and the right to assemble in a peaceable manner.