Student Protest and the First Amendment

Students in the United States have a history of activism undertaken to impact social, environmental,economic, or political change. Their activism often focuses on creating changes in funding, curriculum, and the political climate at their universities. The campus plays a crucial role in student activism because it is considered a physical and ideological base for social change. American student activism is not only marked by continuity and change, but also by political, cultural, and ideological currents that have been dramatically represented throughout the history of universities. In his historical analysis of American student politics, Philip G. Altbach identified and defined three major streams in American student activism that university administrators must recognize; liberal-radical, the religious, and the conservative.[1]

A Brief History of Student Unrest

The history of education has long been marked by struggles for power and political advancement. Student activism is almost as old as college itself. It is at the university that students begin to define their own identities and collective powers. They also start to characterize themselves in relation to society and the social institutions with which they disagree.[2] Student activism is most certainly not a new concept, and American colleges have seen periods of extreme turmoil and disruption even before the United States became a nation. American students agitated against the Crown in the 1760s, slavery in the 1830s, and the Union draft in the 1860s. It was after the Civil War that America began the process of taking on its modern disposition. [3] In the 1900s, college administrators began witnessing the formation of more radical liberal student groups. These groups were typically offshoots of adult political organizations. One such example is the Intercollegiate Socialist Society (ISS). The ISS was founded in 1905 and targeted higher education institutions on the east coast. It opposed United States involvement in World War I and supported issues like free speech on campus, the removal of immigration restrictions, and the World Court. This group, and others like The Young People’s Socialist League (YPSL) and The Student Christian Volunteer Movement (SCVM), were primarily focused on educational rather than activist goals.[4]

In the 1920s, students drifted toward activism that was founded in rejecting the conventions of society and criticizing the university system. The University was charged with being too large, too bureaucratic, and too dismissive of student interests and concerns. Some of the student groups active during this decade were the National Student Federation of America, the Student League for Industrial Democracy (SLID), and the SVCM. These groups supported military issues. The students in the organizations argued for disarmament and protested American military incursions into Mexico and Nicaragua. This “anti-war” ideolgy carried into the 1930s, creating “the first mass student movement in American history” . The outbreak of World War II brought a pause in the radical student movements that carried in the next decade. In fact, college students in the 1950s were often referred to as “the silent generation” . [5]

The same could not be said of the next decade. The 1960s was a time of radical reform and immense change in student movements. For the first time since the 1930s, American campuses sought attention on the national stage.[6] Protest in this decade is most commonly linked with the Free Speech Movement at the University of California, Berkeley. One of the most important issues of this time that sparked a great deal of unrest in the country was the changing national involvement in the Civil Rights Movement. Petitions, freedom marches, protests, and voter registration drives were just some of the many forms of protest student activism took in the decade. Changes in race relations sparked dissension in other power relationships. Students started to speak out against inequalities between the sexes, focusing their attention on promoting feminist ideology and defining reproductive rights. They also questioned normative social mores and used music as a means to express their disagreement. The years of 1968-70 are commonly known as “peak years” for student protest. It has been estimated that severe property damage and other forms of physical violence occurred at nine percent of American campuses. By 1970-71, violence and disruption had declined slightly. In comparison to the three previous years, these two saw fewer than one in five of all institutions experiencing a major violent or disruptive protest. This decline was due to a variety of reasons, including the winding down of Vietnam War dissent, increases in economic dislocation, changes in the American job market, a shift in the focus of media attention, and broad developments in the American political climate. In the early '70s the nation became decidedly more conservative and stayed so over the next two decades. President Richard Nixon's election in 1968 started this political trend, and it culminated in the “Reagan Revolution"of the 1980s. Student attitudes became more conservative on most issues since the tumultuous uproar of the 1960s. In 1987, only 2.3 percent of American college freshmen identified themselves as being on the far left. Though more apathetic when compared to the volatile sixties, the 1980s did witness some revival of student activism surrounding issues such as foreign policy and race relations. [7]

The 1990s saw a shift in student activism organized around multiculturalism. The majority of protest incidents were derived from issues like racial and ethnic struggles, women’s liberation, gay rights, and issues that scholars have dubbed “identity politics.” Though protests and other forms of student activism are still directed at some broader national concerns today, most major issues involve problems connected to campus finance. Most students spend their energy fighting the decline in educational funding and subsequent rising tuition costs. [8]

How the First Amendment Applies to Student Protest

"Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for thier common good, and to petition the government for a redress of grievances" (First Amendment)

The American public takes its First Amendment rights very seriously, and citizens often exercise their right to assemble and protest. Many consider the freedom of speech and the press, two rights linked to student protests, to be fundamentally ingrained in American citizenship. Over the years, the judicial system has contended that, because we live in a world overrun with people of different and opposing ideas, no freedom is absolute. Though one may express the freedom to say and do what they feel to be right, there are boundaries that must be govern a peaceful and respectful environment. The most troublesome instances concerning freedom of speech, press, and assembly arise from efforts made by the government and law officials to protect themselves from extreme revolutionary individuals and groups. When these groups call for change and react with violence, the government must interfere to protect conflicting interests. Typically the courts discern whether or not these cases involve speech or action that is likely to result in illegal behavior. Yet the question remains, when do valid attempts to express dissent and debate targeted to influence people's beliefs influence their conduct instead, causing them to do something that the law forbids? [9]

The right to assembly is one that is guaranteed against unreasonable interference from both the state and federal levels. Municipalities may require that large rallies and parades only be held after prior police notification. The role of the police is to keep the peace, and in issues surrounding student protests on campus, the presence of the police is seen as a form of protection. [10]

The First Amendment applies to all areas of the government. This includes all public schools. Although courts have allowed for school officials to limit student rights in certain circumstances, the courts recognize that that students, like all other citizens, should be protected by the First Amendment. [11] Schools may limit student expression based on the reasonable and nondiscriminatory regulations of time, place, and manner. Students in public schools do not posses the exact same level of rights as adults in a public forum would because of these restrictions that are set forth to maintain a positive learning environment and allow schools to continue to be considered "a marketplace of ideas." Nonetheless, these time, place, and manner restrictions must still be reasonable. The U.S. Supreme court has stated that First Amendment jurisprudence provides that time, place, and manner restrictions are indeed constitutional if the abide by the following guidelines:

  1. The are content neutral.
  2. They are narrowly tailored to serve a governmental interest.
  3. They leave open ample alternative means of expression.
This means simply that school officials have the power to limit student distribution of material to certain locations and at certain times so long as these regulations are both reasonable and nondiscriminatory.

Important Cases

West Virginia State Board of Education v. Barnette, 1943 (Click here to view case)

In this particular case, the school board made a decision that saluting the American flag be a regular part of programed activities for the school. It demanded that all teachers and students salute the American flag, and that the refusal to participate in this activity would result in being an act of insubordination, and the consequence was expulsion. The Barnette family, being Jehovah's Witnesses, brought on a law suit saying that by forcing students to participate in this, the school was infringing on the students' First Amendment rights. [13]

The court ruled in favor of the Barnettes, and held that forcing children to salute the flag was indeed unconstitutional. This case is of great importance to the world of public education, including public colleges and universities, because this case was one of the landmark cases in which the U.S. Supreme Court explicitly extended First Amendment protection to students attending public schools. [14]

Tinker v. Des Moines Independent Community School District, 1969 (Click to view case)

One of the most important cases regarding student protest within the educational system is //Tinker v. Des Moines Independent Community School District.[15] In a public school system in Des Moines, Iowa, the administration suspended three students for wearing black armbands to protest the federal government's policy in Vietnam. The school and the lower court ruled that the ban was acceptable because it prevented disruption in the school. The Supreme Court interpreted the law differently, and ruled that the apprehension of disturbance is not enough to outweigh the right to the freedom of expression. The main question that came from this case was whether or not this form of silent protest violated these students' First Amendment right to freedom of speech. [16]

Tinker was a very important case regarding First Amendment rights because it established that students and teachers do not forfeit their constitutional rights when they enter a school building. In this instance, the Supreme Court recognized that a student's constitutional rights will be protected with the understanding that there is not a material disturbance causing disorder to the educational environment. Furthermore, the mention of time, place, or manner in this case simply means that speech can be regulated under certain circumstances based on a content-neutral view point (Bird et al, 2006). Though this case took place in a secondary education setting, it is still applied to the world of higher education and student protection under the First Amendment. [17]

Wilson v. Johnson, 2007

Student Caleb Wilson sued university officials at the University of Tennessee because of an alleged violation of First, Fourth, and Fourteenth Amendment rights when Wilson was arrested for the hanging of protest signs. He claimed that not only were these rights violated, but that he was arrested without probable cause, and the promulgation and enforcement of vague University polices. In February of 2003, Wilson went to the school's Art and Architecture Building to hang his signs protesting the war in Iraq. Wilson hung three banners inside and outside of the building. Wilson also painted the words "No War" in yellow paint on the interior and exterior of the building and on the front doors of another building. Wilson was arrested when a University police officer arrived to the scene and arrested him for vandalism, public intoxication, and evading arrest. Despite University policies on vandalism and the hanging of signs, Wilson claimed that at the time of arrest he was not aware that painting on the structure of a University building in violation of a University policy or state law. He stated that he believed his messages were condoned and removed because the message he was trying to send. [18]

The Court of Appeals held that the school's buildings were considered nonpublic fora, and that the removal of the student's materials was not based on viewpoint discrimination. It was also decided that the seizure of the banners and removal of graffiti was not a violation of the student's First Amendment rights. The Court decided that school's policies on vandalism and distribution of information to students was unambiguous and clear. This case is an example of not only why clear policies are important, but how students' right to petition and freedom of expression can be limited to time, place, and manner concerns.[19]

Smith v. Tarrant County College District, 2010

Plaintiffs Clayton Smith and John Schwerts Jr. were members of Students for Concealed Carry on Campus (SCCC), a national student organization created in the aftermath of the shootings at Virginia Tech that seek to inform the public on the status of the law and carrying concealed firearms. SCCC also seeks to have state and college authorities allow licensed students to carry concealed firearms on college campuses. The members of this organization are advocates for the repeal of the laws and college regulations that contradict with this goal. As a part of this advocacy, members often participate in "empty-holser protests;" an activity in which members wear empty gun holsters during normal campus activities to symbolize the fact that they are unarmed and defenseless against gunmen such as the one at Virginia Tech. In 2009, Smith, being the campus leader for SCCC, assisted in organizing one of these protests on his campus. Smith informed administrative officials of his plans for protest, and was denied. This happened in the spring, and again in the fall semester. Smith was told instead, that he could distribute flyers in the school's free speech zones, but this would require that he request the free-speech zone at least 24 hours in advance. Smith filed suit against the school claiming that the school's rules impermissibly deprived them of their right to engage in speech by not allowing them to wear their holsters on campus and restricting their efforts. Smith also accused the school of impermissible prior restraint by having to apply for the free-speech zones in advance. [20]

Following the guidelines set forth by Tinker, the District Court ruled that by prohibiting students from wearing the empty holsters in the classroom and hallways, the school was indeed infringing upon the students' First Amendment rights. The Court also held that the students failed in presenting a ripe controversy could challenge the provisions of the student handbook restricting speech by non-students, visitors, and guest-speakers. This case is important in that it is another example of how students rights also apply while on campus. There is a difference between black armbands such as in Tinker, and empty gun holsters, but nevertheless, students still hold the right to demonstrate their beliefs. [21]

Other Examples of Students Protests


For nearly a decade, Berkeley kept the entire nation on edge, wondering what would happen next. From about 1964 to 1974, California kept the imaginations of Americans everywhere reeling.[22] What has become known as the "Free Speech Movement" started in the fall semester of 1964 when the University of California President Clark Kerr asked students to keep their political activities off of campus, and in return, the University wouldn't interfere with the lives of students off campus. Students were asked to stop demonstrations of political activities on the Bancroft Strip in front of Sproul Hall. A few days later, students organize a ten hour sit-in in Sproul Hall. After a few more days pass, the activities continue when Mario Savio, a student at the time, jumps on top of a police car in Sproul Plaza, and other students will not let the car drive away. This moment is iconic for the Free Speech Movement because after Saivio jumps on to the car, nearly 10,000 students pass around a collection to pay for the damages to demonstrate that they are good American citizens and that fighting for their liberties is a part of their civic duty. [23]

As time passed, the protests continued to spread. The Chancellor gives Savio and a few others discipline letters, and they react by forming a rally in Sproul Hall with one thousand students singing "We Shall Overcome." The police intervene and 814 people are arrested. A few days after this, the school's President's massive student meeting is interrupted by Savio when he attempts to address the audience. The Free Speech Movement, after this, turned into something of a different sort. Rallies turned into parties, and while the student protests still had some political undertones, the movement became more and more radicalized. The character of protests changed with the Vietnam War demonstrations and became increasingly more violent. In 1967, police used mace to control crowds because participants were growing more violent and radical. These issues and student lead demonstrations of expression that Berkeley faced have become iconic images of student protest and First Amendment rights. [24]

San Diego State University, 1992

Student activism and protests continued after this era, but not in the same dramatic capacity. Today, many student protests are centered around budget cuts to the educational system and rising tuition costs. In 1992, there was a crisis at San Diego State University. In the early 1990s, California faced one of the worst financial recessions since the Great Depression. Because of this, budget cuts were made to public higher education beginning in 1991. By 1992, the cuts seemed even more drastic, causing class sections and faculty to be eliminated in mass quantities. The student response to this was equally as dramatic. The campus rocketed into crisis on May 13, 1992, when more cuts were announced. The students responded quickly. On May 15, a huge rally was organized, and drew in students by the thousands, causing this to be the largest demonstration at SDSU since Vietnam War protests over twenty years prior. The rally began with a student attached to a cross in a Christ-like fashion, attempting to symbolize the sacrifice the campus was about to endure. Students spoke up about how their education and future lives had been dramatically altered within a period of two days. Deborah Katz, a student and one of the rally organizers, spoke the loudest, and has since been compared to Mario Savio of the Berkeley protests. This protest demonstration was influential because it established an immediate alliance with the important politicians that remained in tact until the crisis dwindled down in the following autumn. [25]

Administrative Application

Understanding the impacts of such protests and freedoms of expression on students is an crucial part in being a proactive university administrator. It is important to not only know and understand the legalities and student rights that surrounds such protests, but to also understand the behavior and attitude changes in students that are sparked by these sorts of events. With the student population differing from the predecessors with each incoming group, it can be determined that their attitudes toward major political, social, economic, and campus issues will alter as well. Though these trends are not necessarily discernible, supporting student rights and exposing them to as many different ideas and belief sets as possible will help mold them in the the future leaders we are trying to create. [26]

The modern university is the cradle of American future. Our students are typically well informed of their rights, and it is vital that administrators provide ample opportunities for them to express themselves in ways that are conducive to the pedagogical goals of the school. As time passes and tomorrow becomes today, we can look at the events of student protests in the past, and guarantee a constitutionally protected future for our students. [27]

"Only the educated are truly free."


  1. ^ Altach, Philip G. (1997). Student politics in america: a historical analysis. New Brunswick: Transaction Publishers.
  2. ^ Boren, Mark. (2001). Student resistance: a history of the unruly subject. London: Routledge
  3. ^ DeGroot, Gerard. (1998). Student protest: the sixties and after. New York City: Longman.
  4. ^ Astin, Alexander, Astin, Helen, Bayer, Alan, & Bisconti, Ann. (1975). The power of protest. San Francisco, CA: Jossey-Bass Publishers.
  5. ^ Boren, Mark. (2001). Student resistance: a history of the unruly subject. London: Routledge
  6. ^ Albach, Philip, & Cohen, Robert. (1990). American student activism: the post-sixties transformation.The Journal of Higher Education, 61(1), 32-49.
  7. ^
    Astin, Alexander, Astin, Helen, Bayer, Alan, & Bisconti, Ann. (1975). The power of protest. San Francisco, CA: Jossey-Bass Publishers.
  8. ^
    Rhoads, Robert A. (1998). Student protest and multicultural reform: making sense of campus unrest in the 1990s. The Journal of Higher Education,69(6), 621-646.
  9. ^
    Poor, Henry. (1971). You and the law. United States of America: The Readers Digest.
  10. ^
    Poor, Henry. (1971). You and the law. United States of America: The Readers Digest.
  11. ^
    Bird, Lee, E., Mackin, Mary Beth, & Schuster, Saundra. (Ed.). (2006). The first amendment on campus: a handbook for college and university administrators. USA : National Association of Student Affairs Professionals.
  12. ^
    Melear, Kerry Brian, Alexander, Laurence, Hendrickson, Robert, & Beckham, Joseph. (2010).Student free speech in public higher education. Dayton, OH: Education Law Association.
  13. ^
    West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943)
  14. ^
    West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943)
  15. ^
    Tinker v. Des Moines Independent School District 393 U.S. 503, 506 (1969)
  16. ^ Tinker v. Des Moines Independent School District 393 U.S. 503, 506 (1969)
  17. ^
    Tinker v. Des Moines Independent School District 393 U.S. 503, 506 (1969)
  18. ^
    Wilson v. Johnson 247 Fed.Appx. 620, 2007 WL 1991057 (C.A.6 (Tenn.)), 227 Ed. Law Rep. 597
  19. ^
    Wilson v. Johnson 247 Fed.Appx. 620, 2007 WL 1991057 (C.A.6 (Tenn.)), 227 Ed. Law Rep. 597
  20. ^
    Smith v. Tarrant County College District 694 F.Supp.2d 610
  21. ^
    Smith v. Tarrant County College District 694 F.Supp.2d 610
  22. ^
    Scott, Joseph, & El-Assal, Mohamad. (1969). Mulitversity, university size, university quality and student protest: an empirical study . American Sociological Review, 34(5), 702-709.
  23. ^ Altach, Philip G. (1997). Student politics in america: a historical analysis. New Brunswick: Transaction Publishers.
  24. ^
    Altach, Philip G. (1997). Student politics in america: a historical analysis. New Brunswick: Transaction Publishers.
  25. ^
    DeGroot, Gerard. (1998). Student protest: the sixties and after. New York City: Longman.
  26. ^
    Scott, Joseph, & El-Assal, Mohamad. (1969). Mulitversity, university size, university quality and student protest: an empirical study . American Sociological Review, 34(5), 702-709.
  27. ^
    Novak, Steven. (1977). The rights of youth: american colleges and student revolt, 1798-1815. Cambridge, MA: Harvard University Press.