The First Amendment On Campus - Final

Running head: THE FIRST AMENDMENT ON CAMPUS

The First Amendment on Campus Reaction Paper Wright State University McKenna Koewler

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College campuses across the United States struggle to find the perfect balance between upholding the First Amendment rights while maintaining a conducive learning environment. The First Amendment of the U.S. Constitution states, “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 peacefully assemble, and to petition the Government for a redress of grievances” (1789). The First Amendment applies to all public institutions; private institutions, however, have exceptions. As higher education evolves, the First Amendment continues to impact college campuses in different ways. Throughout this paper, I will address three topics covered in The First Amendment on Campus: (1) the evolution of higher education through the first amendment, (2) the differences between public and private institutions as it pertains to the first amendment, and (3) considerations student affairs professionals should bear in mind. Court cases such as Brandenburg v. Ohio, Cohen v. California, Healy v. James, and similar cases have set precedents for higher education across the nation regarding the First Amendment. The 1950s brought integration to college campuses, and the Civil War movement was soon to follow. This movement ignited a controversial speaker on colleges campuses that challenged the First Amendment. The disruptions caused were sometimes harmful, however, these acts have impacted the world in many positive ways. For example, Brandenburg v. Ohio set a precedent that “incitement,” verse speech, is not a protected First Amendment Right; therefore, any action that incites violence is not a protected right. In Cohen v. California, Cohen, wearing a vulgar shirt referring to the draft, was arrested. However, in this case, the court found in favor of Cohen. Therefore, his clothing of choice was protected by the First Amendment. Healy v. James addressed the right to assemble when a student organization was denied

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recognition on campus. Each case mentioned above addresses one aspect of the First Amendment, and while these cases set precedents, the challenge to find an appropriate balance still exists. For higher education professionals to find this balance, they first need to understand the amendment. As complex as the First Amendment is, higher education administrators and staff should be able to recognize student rights. One challenge I encountered while reading The First Amendment on Campus is how to determine the right action to take as a professional. A few court cases seemed to be self-explanatory, while other cases tested moral and ethical principles. For example, Boy Scouts of America v Dale found in favor of the Boy Scouts’ to dismiss a scoutmaster based solely on their sexuality. In today’s society, this goes against many institutional diversity statements, ethics, and some mission statements. When considering Boy Scouts of America v Dale in the context of a private institution the dismissal very well could be a possible outcome. Private institutions do not have the same restrictions as public institutions because of a public institution relationship with the government. An agreement between the institution governs students at private institutions. However, some states have fought for private institution students to be protected by the legislature. “Private institutions that have a substantial amount of federal funding for their institution through student financial aid and/or federal programs or grant dollars may be more vulnerable to challenge if they have a substantial enough “nexus” with the government to be subject to governmental restrictions (Bird, Mackin, & Schuster, 2006, p. 42).” Private institutions who receive substantial federal funding are between the black and white lines of the First Amendment. As I explained above, the First Amendment is occasionally self-explanatory or black and white; however, instances such as the private institutions receiving substantial federal funding

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create blurred lines making it difficult to find the balance. The First Amendment on Campus alluded to several best practices for public higher education institutions to implement throughout the book. Keep in mind, higher educations are to act within their role and not in the position of the law, and there are a few practices student affairs professionals can implement to begin creating a balance. Typically, higher educational institutions have public forums when a controversial topic is discussed. Conducting public forums is one method to address the balance. A forum is defined as “a public space, esp. one devoted to assembly or debate” (Bird, Mackin, & Schuster, 2006, p. 32). There are five types of forums including the public forum (constitutional law), public form (noun), traditional public forum, designated public forum, and limited public forum. Public forms take place in a common or designated location that has traditionally served in a similar capacity. For example, during the faculty strike at Wright State University, a public forum was held in the Student Union Apollo room. This room is a very commonly used space for large events such as a public forum. The topic for the public forum was designated by the Student Government Association making it a limited public forum. “Thus, it can be designated as limited to particular groups or particular topics, as long as those restrictions are not based upon the content of the message to be delivered (Bird, Mackin, & Schuster, 2006, p. 34).” During public forums, students express their points of view, which can sometimes be controversial. Another complication higher education face is how to define expressions. There are multiple tests recognized by in chapter four such as balance test, time place and manner, and the threshold analysis. The threshold analysis involves a three-step assessment: (1) identifying First Amendment issues, (2) exceptions to the First Amendment, and (3) forum analysis.

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When identifying the First Amendment issues, student affairs practitioners are to determine the underlying problems. The book suggests analyzing a series of questions to ensure the entire event is investigated. Consider religion, expression, local new involvement, campus demonstration, recognition of a student group or even a request for a meeting room. By answering these questions, it is easier to determine if student rights were guaranteed. If the First Amendment right was not upheld, we move to step two, Exceptions to the First Amendment. There are many specific exceptions to this amendment; however, the most common exceptions include libel, slander, disruption of academics, violence, invasion of privacy, or sexual harassment. The topics just listed are not covered by the First Amendment, and therefore the institution may take appropriate action. The third and final step in the threshold analysis is to analyze the forum. Institutions should consider the situation and understand the First Amendment rights. By following this three-step threshold, analysis institutions can increase their knowledge of campus events and topics. All in all, the First Amendment is a fundamental right that needs to be understood by all higher education employees, not just staff members. After reading The First Amendment on Campus, I was appalled by several scenarios in which their peers ignored students First Amendment right. The resident assistant who made a floor bible study mandatory for students who were exhibiting disruptive behaviors was shocking. One consideration when reading this scenario is the type of institution: public or private. While the First Amendment protects citizens right to practice their religions, it does not preserve the enforcement of religion onto another student, which is what the resident assistant was doing in that scenario. No matter the action the institution takes when addressing the First Amendment, they will be criticized. Many years ago, the First Amendment caused uproars on college campuses, and

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this will continue to occur for the remainder of the institutions' existence. The controversial topics discussed on college campuses are protected, and some community member will not understand why. As offensive the discussion may be, it does not mean it is unprotected. The most important thing we, as student affairs professionals can do is educate. Faculty may not view student affairs professionals as educators; however, we hold great power to impact our student’s lives in many different ways. A strategy we can implement to begin educating students is to meet with them when a speaker is coming to campus. Student affairs professionals can provide a broad overview of the First Amendment and the potential emotions the students may feel. It is essential to follow up with the students during and after the event. The most important aspect of education is its continuation and reflection. Providing a safe space for students to reflect on their experience can provide a deeper understanding of their rights as a citizen of the collegiate community and community in which they live. Not only are students’ lifelong learners, but so are we as student affairs professionals.

THE FIRST AMENDMENT ON CAMPUS References Bird, L. E., Mackin, M. B., Schuster, S. K., & National Association of Student Personnel Administrators, I. (2006). The First Amendment on Campus: A Handbook for College and University Administrators. NASPA - Student Affairs Administrators in Higher Education.

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