First+Amendment+Rights+in+the+Residence+Halls

= = =The Residence Hall as a Forum=

A residence hall on a public institution’s campus is described as a non-public forum (Bird, Mackin, & Schuster, 2006). Because of this classification, expression may be limited within the residence hall if the expression in question is incompatible with the defined purpose of the hall (Melear, Alexander, Hendrickson, & Beckham, 2010). Non-public forums have been given the widest scope of freedom to place limitations on speech and other forms of expression; however, these restrictions on expression, even within the non-public forum, must be reasonable (Bird, Mackin, & Schuster, 2006). Additionally, restrictions must be neutral in content and in viewpoint (Melear, Alexander, Hendrickson, & Beckham, 2010). Speech or expression cannot be restricted within the non-public forum based upon what is being spoken or the views being represented. When a case comes before a court involving the non-public forum, the court reviews the reasonableness of the restriction based on the purpose and the nature of the environment as well as additional circumstances.

When reviewing cases involving first amendment rights in the residence halls, it is prudent to remember that restrictions must be neutral in both content and viewpoint. Recently, several cases have involved what students are and are not allowed to hang in their residence hall windows or write on their residence hall doors. To determine whether or not these restrictions have violated first amendment rights, it is critical to understand the policies from which the restrictions stem and if the policies are based on content or viewpoint.

=Central Michigan University= First we will examine Central Michigan University, where an administrator advised several residents to remove patriotic symbols from their residence hall room in October of 2001 (Lukianoff, 2001). Four roommates had hung an American flag and various other pictures involving the war on terrorism on the front of their residence hall room. The resident advisor (R.A.) later informed the residents that these symbols of patriotism must be removed by the end of the day, as they were offensive to others living in the hall. Later, the residence hall director and other administrators visited the roommates and informed them that they could repost the items except for images that were deemed hate-related items and profanity. FIRE case

The Foundation for Individual Rights in Education (FIRE) was notified and, in response, sent a letterto the president of Central Michigan University, Mr. Michael Rao. The letter informed the president of the aforementioned facts and advocated that the policy against profanity and vulgarity in the residence hall was a violation of the students’ first amendment rights (Lukianoff, 2001). FIRE contended that in suppressing speech that others found vulgar or profane, the university was restricting expression based on viewpoint(Lukianoff, 2001). As noted by FIRE, “the first amendment does not exist to protect only non-controversial speech.”

In November, President Michael Rao responded to FIRE by declaring that any residential staff that asked students to remove patriotic images from their doors or rooms had clearly misinterpreted the university’s commitment to the Bill of Rights (Kors, 2001). President Rao went on to state, “The University is taking steps to assure students in the residence halls that their right to post materials and express opinions on their room doors is protected” (Kors, 2001). Rao contended that the university would no longer condone any official limiting of the free speech of its residents.

Because the residence hall at Central Michigan was a non-public forum with the expressed purpose of creating a living space for students, Central Michigan did have the authority to place restrictions on the residents’ expression. This restriction, however, was not content neutral as it only restricted expressions of patriotism. The University’s policy was not neutral in content or viewpoint; therefore, it violated the first amendment rights of the students.

=University of Georgia=

Almost one year later in September of 2002, the University of Georgia faced a similar problem. The university sent a letter to the presidents of several fraternities on campus requesting the removal of all “stars and bars/confederate flags” from the fraternity room windows (Lukianoff, 2002). A student questioned the university’s authority to remove these flags citing his first amendment rights. The Inter-Fraternity Council (IFC) counselor informed the student that, though there was not a formal policy banning the flags from the windows the flags were violating the diversity plan implemented by the IFC. FIRE case

When the student informed the counselor of his intention to involve the American Civil Liberties Union (ACLU) and FIRE, the counselor changed his opinion (Lukianoff, 2002). Initially the counselor had informed fraternity members that if they did not comply, they would be subject to further action (Lukianoff, 2002). After the student’s warning, the counselor agreed that students not complying would only be in violation of a “gentlemen’s agreement” (Lukianoff, 2002).

FIRE sent a letter to university president, Michael F. Adams, explaining the case and asking that President Adams ensure that the students’ first amendment rights were protected (Lukianoff, 2002). In October, President Adams supported FIRE’s request and apologized for the staff member who threatened the first amendment rights of the students (Mullendore, 2002). Georgia’s case is extraordinarily similar Central Michigan’s in that the administration asked that some expressions be removed from windows while others remained. Because some items were still displayed and others were not, the restriction was based on a viewpoint bias. The fraternity house is a non-public forum, so once again, the restriction must be neutral in viewpoint and in content.

Georgia’s interactions with FIRE were far from over. In 2010, FIRE was notified of another suppression of freedom of speech at the university, this time in a traditional residence hall. UGA implemented a residential life policy called “acts of intolerance” which required the RAs to notify the police of any supposed acts of intolerance (Bonilla, 2010). Thus, the RAs at the University were required to notify the campus police of anything that might be considered inappropriate or restrictive of other students’ beliefs (University of Georgia, n.d.). FIRE article UGA RA Emergency Procedures

In August, the police were dispatched to a residence hall in which a white board had been changed from “Welcome to Boggs 3rd floor” to “Welcome to Boobs 3rd floor” (Bonilla, 2010). The very next day, the police were again dispatched for a drawing on a whiteboard displaying a picture of a penis surrounded by fire with the caption, “fire crotch” (Bonilla, 2010). The next incident occurred a few days later. An RA noticed during building rounds that every whiteboard on the hall had the words, “dick and sideboob” written on them and promptly called the campus police (Bonilla, 2010).

FIRE charged UGA’s policy concerning acts of intolerance with being too vague and overly broad. The policy prohibits any behavior that “harm or threaten to harm a person or a group.” While the residence hall is, again, a non-public forum the restrictions cannot be overly broad. Policies should be narrowly tailored and well defined so they do not create a chilling climate for speech and expression within the residence hall. Simply because someone is offended by the expression does not make that expression outside the protection of the first amendment.

=University of Texas at Austin=

A case at the University of Texas at Austin was similar to the University of Georgia case in which students were asked to remove items from their windows. At Texas the students were living in a traditional residence hall room (Creely, 2008). Two roommates were asked to remove political signs from their residence hall door and window (Creely, 2008). Additionally, the students were warned that a failure to comply would result in an administrative block against registering for spring classes – the equivalent of suspension (Creely, 2008). FIRE article

In this case, however, the University staunchly defended its administrators. According to an article in [|FIRE’s database], “Jeffery Graves, associate vice president for legal affairs, said the University does not have an aesthetics policy but instead has rules that limit the locations of signs throughout campus” (Creely, 2008). According to this reasoning, the restriction is content and viewpoint neutral and should be sufficient in the non-public forum. When researching the policy on the UT website, however, the aforementioned explanation of the policy seemed to be incorrect. The posting policy at the University of Texas at Austin declares that no more than twenty percent of a student’s wall may be covered with flammable materials, such as posters, and that the window can be included within that percentage (UT-Austin, n.d.). Additionally, the policy allows for two 8.5 x 11 posters to be hung either on the student’s door or on the tack board beside the door, as long as proper adhesive is used (UT-Austin, n.d.).

The policy in itself is sufficient for the law. It is narrowly defined and neutral in content. Additionally, the students are afforded other areas to express their opinions. However, as long as these posters complied with the specifications of the policy, they should not have been removed. UT Austin has not responded to FIRE nor has the case been brought to trial. As a result, there is currently no conclusive decision about the legality of political postings in UT’s residence hall doors and windows.

media type="youtube" key="sHF4sJIBgP8" width="425" height="350"

The first four cases examined here were residence hall policies that suppressed student expression within his or her on campus room. The next two cases will investigate expression inside residence halls. All of these cases are similar in their violations of students’ first amendment rights.

Illinois Institute of Technology
This case examined a student government’s legislation at the Illinois Institute of Technology. The campus organization wished to discontinue the use of residence hall bulletin boards for controversial political issues (Sheahan, 2009). The legislation placed the comfort of the residents in the halls as the foremost priority, relegating freedom of their speech to secondary importance (Sheahan, 2009). Unfortunately for the student government, controversial speech is the most legally protected speech. When someone has a differing opinion, because of the first amendment, it is important that the person be allowed to speak or express himself. Speech that makes students uncomfortable is still protected speech. FIRE article

Furthermore, the legislation added that all postings should receive prior approval from the staff of student life and residential life (Sheahan, 2009). This procedure is known as prior restraint and is very rarely acceptable under the auspices of the first amendment. Speech that must undergo prior scrutiny could be discarded based upon a viewpoint bias. Restrictions within the residence halls must be neutral in viewpoint and in content.

Thankfully, the legislation was voted down in the student senate before it reached the office of the dean of students (Sheahan, 2009). This legislation, if passed, would have created multiple transgressions of the students’ first amendment rights such as discriminating on content and viewpoint and subjecting free expression to prior restraint.

University of Delaware
In October of 2007, students at the University of Delaware brought their university’s policy to the attention of FIRE. They objected to the residential program required of all students on campus (Lukianoff, 2007). The University of Delaware referred the training program as a “treatment for the student’s incorrect attitudes and beliefs” (Lukianoff, 2007). The program “requires the approximately 7,000 on campus students to adopt highly specific university-approved views on issues ranging from politics to race, sexuality, sociology, moral philosophy, and environmentalism” (Lukianoff, 2007). FIRE believed this program to be highly disruptive of the students’ right to form their own private beliefs and expressions, thereby severely restricting their First Amendment liberties. [|FIRE article]

The University’s personnel indoctrinated the students through a variety of mandatory forums such as training sessions, floor meetings, and one on one conclaves with their RA (Lukianoff, 2007). The RAs were required to be within the rigidly defined limits of the University’s thought pattern (Lukianoff, 2007). RAs were encouraged to ask personal and specific questions of the residents during one on one meetings. These questions were invasive and aimed to learn more about the students’ beliefs. Some examples of questions included, “When did you discover your sexual identity?”, “When were you first made aware of your race?”, and “When was a time you felt oppressed?” (University of Delaware, n.d.). RAs then wrote reports about these sessions and delivered them to their supervisors (Lukianoff, 2007).

The university’s endorsed goals for this program focused on allowing the residents to achieve certain competencies that would help them to become better citizens; however, as part of this program, students were asked to display certain outward signs of affinity for the ideals taught (Lukianoff, 2007). These outward signs included, but were not limited to, such things as posting certain door decorations or advocating for particular oppressed social groups recognized as such by university administrators (Lukianoff, 2007).

media type="youtube" key="6EbQfmVoOfM" width="425" height="350"

The University discarded the program after enduring extensive media scrutiny and public disapproval. This case is different from the others in that the administration was attempting to suppress the freedom of ideas and speech, instead of simply asking students to take down flags and drawings within the residence halls. It is particularly frightening that this program existed, much less continued unabated for at least two years. The university is supposed to be the marketplace of ideas, not an inculcation of beliefs that blur the lines between college and cult. Additionally, residence halls have the expressed purpose of living in community with other students and not of learning rigidly guided citizenship. Thus, the program violated students’ first amendment rights.

=Summary=

In summation, the residence hall has an expressed purpose on college campuses – to provide comfortable housing for its students – and is therefore a nonpublic forum. Nonpublic forums are the easiest forums in which to restrict speech. These restrictions, however, must be reasonable, content-neutral, unbiased in viewpoint, and allow the students an alternative location of expression in order to adhere to constitutionally regulations.

Cases from the foundation of individual rights in education have guided our discussion of first amendment rights in the residence halls. Beginning with posting materials on windows and doors, moving to indoctrinating students during orientation, and ending with an attempt to institute a prior approval for postings, many schools have been cited for violation of first amendment rights in the new millennium.

From the universities of Central Michigan, Georgia, and Texas, it was discovered that students’ doors and windows within their on campus housing could be an available space for the student to express his or her views. Because these institutions did not have policies banning all posters or materials from doors or windows, the institutions could not insist on students removing materials based on viewpoint biases. The universities learned that outside organizations would come to the aid of students who thought their ability to publicly adhere to their beliefs was being restricted by administrators.

Indoctrination should never be a condoned practice at a university, much less within a public university’s residence halls. However, the University of Delaware attempted to create a mass of students who held the same views as the university officials. The program profusely infringed on students’ first amendment rights. Once the administration received sufficient scrutiny from FIRE and the media, it disbanded the program aimed at citizenship.

Finally, the student senate at Illinois Institute of Technology voted down legislation that would require prior approval of postings within the residence halls. One branch of student government hoped this legislation would provide a more comfortable residence hall environment by preventing the introduction of controversial political issues in residents’ homes. Controversial speech was found to be the most protected of all speech, and luckily other students stepped in to guarantee the rights of their peers.

In conclusion, while speech within a residence hall can be restricted, the policy must not be biased on viewpoint, cannot indoctrinate students, and should protect controversial speech. Residence halls have always been a lively place for the exchanging and development of ideas and will continue to be so underneath the protection of the first amendment.