Know Your Rights: College Students

Free Speech in Public Universities

The First Amendment protects the rights of students in public colleges and universities to express their opinions, even if others disagree with the views expressed or the form of expression.
Public Universities are still allowed to set reasonable, viewpoint-neutral, rules related to the time, place, and manner of student speech. For example, a speech or rally that might be permissible in a park may be restricted if made in the reading room of a library. They can also restrict speech that directly calls for immediate, lawless action, such as threatening or presenting “substantial disruptions” to campus such as blocking entryways and exits for buildings on campus, causing property damage, and endangering the safety of others. To be restricted, “threatening” speech must be clear, unambiguous and immediate; political hyperbole does not rise to the level of true threats.
Students have a constitutional right to engage in peaceful marches and demonstrations, wear symbolic clothing, coordinate boycotts, and any other expressive actions as long as they don’t violate the school’s narrowly tailored time, place, and manner rules.
Public universities cannot deny recognition to student groups for being associated with a controversial organization or for having controversial opinions.
Public universities cannot limit or deny recognized student groups from communicating with students, faculty, and administration. They also cannot deny funding, resources, or services that are generally accessible because they disagree with the group’s viewpoint. However, public universities can deny recognition or otherwise stop student group activities when those activities violate reasonable campus rules, interrupt classes, or substantially interfere with the opportunity for students to learn. This is a high bar. Public universities cannot shut down a student group without having substantial evidence to show that their activities break campus rules or cause substantial disruption.
Public colleges and universities can invite whomever they like to speak at commencement ceremonies or other events, just as students are free to protest speakers they find offensive.
University administrators cannot dictate which speakers students may invite to campus. If a college or university usually allows students to use campus resources (such as auditoriums) to entertain guests, the school cannot withdraw those resources simply because students have invited a controversial speaker to campus.
Symbols of hate are constitutionally protected if they’re worn or displayed before a general audience in a public place — say, in a march or at a rally in a public park. But the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual, such as by hanging a noose over their dorm room door. Nor does the First Amendment protect the use of a non-verbal symbol to encroach upon or desecrate private property, such as by burning a cross on someone’s lawn or spray-painting a swastika on the wall of a synagogue or dorm.
Public universities have no obligation to fund student publications; however, if a public university voluntarily does so, it cannot selectively withhold funds from particular student publications because they advocate a controversial point of view.

Free Speech in Private Universities

Private universities generally are not bound by the First Amendment. So, private school students do not have the same freedom of speech rights as public school students. A private school student’s free speech rights are generally described in the university’s rules and student conduct code.
Your private college or university can discipline you for your speech if it determines that the speech violates university rules.
Private universities are required to substantially comply with their own policies regarding the formation and shutting down of student groups.
To locate your school’s rules, code of conduct and disciplinary process, search your school’s website or reach out to the administration, such as your office of student affairs or your registrar. Read the code and any additional policies related to web use, free expression, event coordination, and bias/harassment.

Discrimination and Harassment

All students are entitled to equal access to education — free from harassment and discrimination on campus. Public and private universities are bound by civil rights laws to protect students from discriminatory harassment on the basis of protected characteristics, including race and national origin. So, while offensive and even racist speech is constitutionally protected, racist speech directed at a particular student can constitute impermissible harassment, not free speech.

Privacy

The Family Educational Rights and Privacy Act (FERPA) prohibits universities that receive funding from U.S. Department of Education programs – which generally covers both public and private universities – from disclosing many types of student information without your consent if you are 18 and over. The law does allow a school to share “directory information” like a student’s name, address, telephone number, degrees, awards, and participation in activities and sports.

Red and white text on a black background that lists protest rights.

1. But don’t restrictions on speech send a strong message against bigotry on campus?

A.But don’t restrictions on speech send a strong message against bigotry on campus?

Bigoted speech is symptomatic of a huge problem in our country. Our schools, colleges, and universities must prepare students to combat this problem. That means being an advocate: speaking out and convincing others. Confronting, hearing, and countering offensive speech is an important skill, and it should be considered a core requirement at any school worth its salt.

When schools shut down speakers who espouse bigoted views, they deprive their students of the opportunity to confront those views themselves. Such incidents do not shut down a single bad idea, nor do they protect students from the harsh realities of an often unjust world. Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.

2. Are non-citizens protected by the First Amendment?

A.Are non-citizens protected by the First Amendment?

The First Amendment applies to both citizens and noncitizens in the United States and guarantees the right to freedom of expression, including actions like taking part in demonstrations and publicly expressing opinions critical of government policy and actions.

3. Can a college or university take adverse action against a student based on the student’s speech on a matter of public concern?

A.Can a college or university take adverse action against a student based on the student’s speech on a matter of public concern?

Students at public universities have a constitutional right to speak out on political issues, organize or attend protests or otherwise advocate or support a cause or movement while in school – as long as they don’t disrupt the functioning of the school or violate viewpoint-neutral and narrowly tailored school policies.

What counts as “disruptive” will vary by context, but a school disagreeing with a student’s position or thinking a student’s speech is controversial is not enough to qualify.

4. Can a university punish a student for off-campus or online speech? Can a student’s social media activism be the basis for a university’s adverse action against that student?

A.Can a university punish a student for off-campus or online speech? Can a student’s social media activism be the basis for a university’s adverse action against that student?

Outside of school, students enjoy essentially the same rights to protest and speak out as anyone else. This means students are likely to be most protected if they organize, protest, and advocate for their views off campus and outside of typical school hours.

Students have the right to speak their mind on social media, and their school has the least authority to punish them for content posted off campus and outside of school hours that does not relate to school.

5. What is the ACLU’s position on hate speech on campuses, especially given the recent rise and genuine risk of threats and harm to Jewish, Muslim, and Arab students and faculty members?

A.What is the ACLU’s position on hate speech on campuses, especially given the recent rise and genuine risk of threats and harm to Jewish, Muslim, and Arab students and faculty members?

The First Amendment does not protect behavior on campus that crosses the line into targeted harassment or true threats. Also, public and private universities are bound by federal and state civil rights laws, including Title VI of the Civil Rights Act which prohibits discrimination based on race, color, or national origin. But offensive or bigoted speech does not necessarily (or even usually) rise to that level, and determining when conduct crosses that line is a legal question.

We are urging universities to remember that while it can be challenging to balance public safety with the need for vigorous public debate, the Constitution requires the government to protect the free speech rights of everyone, not just those with whom it agrees.

6. Why does the ACLU use its resources to defend the free speech rights of white supremacists and other bigots?

A.Why does the ACLU use its resources to defend the free speech rights of white supremacists and other bigots?

Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend civil rights workers, anti-war protestors, LGBTQ+ activists, and others fighting for justice.