Managing the Speakers and the Stage: Best Practices for Free Expression on Campus

Last Friday, as a preamble to their violent marches and rallies in Charlottesville, VA, neo-Nazis descended upon the University of Virginia.  Carrying torches, around 300 individuals marched through the heart of the UVA campus and towards the Rotunda, the venerable center of the university.  While surrounding the statute of Thomas Jefferson, violence broke out and a number of students, faculty, and staff were injured.

The incident is a reminder that colleges need to be prepared.  Some universities find it difficult to balance campus free expression with maintaining the safety and security, physical or otherwise, of their community members.  The following are examples of “Best Practices” that HMBR has identified to serve institutions seeking to manage the stage and the speakers on it.  Note: Although most private colleges have statements affirming free speech rights on their campuses, the following best practices are applicable at public institutions and do not necessarily reflect the guidance we would provide to private institutions.

  • Make Your Commitments Clear

Having a firm free expression statement demonstrates that your institution is committed to free speech, student expression, and an environment that fosters the free exchange of ideas in the pursuit of academic truth.  The statement should acknowledge your institution’s awareness of, and sensitivity to, at-risk communities and communities that could potentially be targeted by controversial speakers. The college should also make clear its commitment to holding students accountable when expression turns into behavior that violates the student code of conduct and endangers the safety of the college community.

  • The Impartial Referee

Restrictions placed upon the content of a speech are almost always struck down by the courts.  It is important that, when it comes to attempting to regulate speech on campus, the college remains viewpoint neutral.  This does not mean that the college cannot set ground rules for groups and individuals invited to speak on campus.  Acting like a referee allows the college to set reasonable restrictions on expression, as long as both sides are held to the same standard.   The areas where the college should always remain content neutral include: time, place, and manner restrictions; access to campus facilities, such as lecture halls or theatres; and event security or facility rental costs.

  • Relationships Can Foster Creative Solutions

Establishing an environment of civility on campus begins with building relationships across a number of college communities.  Campus administrators should have working relationships with student leaders—such as student government associations, student groups associated with political parties, etc.—long before a group invites a controversial speaker to campus.  These relationships can foster alternative, less provocative courses of action that can still allow the student organizations to achieve their legitimate goals while lowering the temperature of the community.

  • Having a Plan

After the incident at UVA, the university president remarked that she was grateful that UVA had an emergency plan, drilled mock disasters in the past, and that they were ready when the time came to put the plan into action.  Beyond an emergency plan, however, the college should have clearly articulated, step-by-step, viewpoint-neutral processes for student organizations to bring speakers onto campus.  Training incoming student leaders in these processes and making sure that they understand the required procedures can save the administration many headaches in the future.  Even if the neo-Nazis at UVA were not an invited group, these practices can be bulwarks against unwanted, but invited, speakers and provide opportunities for alternative arrangements to be proposed.

  • Logistics Are Key

Choosing the venue for the speaker is a significant detail that can sometimes be overlooked.  A large room, away from dormitories, health facilities, or classrooms and with easy access in and out, is often the best option.   It is important to consider potential contingencies as well, such as accommodating larger than expected audiences, giving space for the presence of protestors, and making sure emergency personnel have easy access to the facility should the unthinkable happen.

  • First Duty Should Be Safety

Perhaps the most important part of the administration’s duty to their students, and the college community at large, is to provide a safe learning environment for all.  Sometimes, that environment can be compromised and the college should be prepared.  Law enforcement should be relied upon for security judgments, but it is almost always better to err on the side of protecting the health and safety of the college community.

  • The Antidote to Bad Speech: More Speech

Having legal, effective, and non-disciplinary responses to offensive speech can often be the best answer to these controversial events.  However, it is important not to mischaracterize otherwise protected speech as actionable conduct.  Despite some misgivings about offensive speech, the college is not required to provide an “offense-free” environment.  On the other hand, colleges have successfully organized counter-events when offensive speakers are brought on campus.  Concurrent events or alternative presentations can provide students with opportunities to counter the hateful rhetoric that they oppose, while granting them a forum to express their own opinions as well.

 

As the UVA president said afterwards, the neo-Nazis marching on campus was a nightmare scenario and one, hopefully, most college administrators will never face.  But if a college is committed to creating an environment of free expression for all, there are best practices that the college can employ to ensure free expression is guaranteed in a safe, welcoming, and academically vibrant community.

Affirmative Action Under Review? A Reminder of a College’s Ongoing Responsibilities

Last week, The New York Times published a report suggesting that the U.S. Department of Justice would start investigating intentional race-based discrimination in university admissions. As the story evolved, it became known that the report was actually an internal job posting that did “not reflect a new policy or program or any changes to longstanding DOJ policy,” according to a DOJ spokesperson. Later in the week, The Wall Street Journal reported that the posting sought volunteers for a complaint by an Asian-American group that has accused Harvard University of race bias in admissions.

Whether the report does indeed signal a shift in policy or simply requests volunteers for a specific investigation, the story offers an opportunity for colleges to reconsider when, why, and how they use race in their admissions.  To that end, it is important to provide a sober review of the requirements that colleges must observe for their race-conscious admissions policies.

  • Drawing the Link: Connect Diversity to the College’s Mission with “Concrete and Precise” Goals

In 2016, the Supreme Court in Fisher v. University of Texas at Austin lauded UT for the expression of its goals in developing its race-conscious admissions process.  Justice Kennedy wrote that a college needs to identify the educational values that it seeks to realize through its policy.  These values at UT included: the destruction of racial stereotypes, the promotion of cross-racial understanding, the preparation of the student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.  In addition, the Court noted UT’s striving for an academic environment that offers a robust exchange of ideas, exposure to different cultures, preparation for a diverse workforce, and the acquisition of competencies required of future leaders.  Colleges that want to consider race in their admissions process need to express similarly thoughtful explanations for their programs.

  • Data! Data! Data! Evidence is Key If Your Admissions Policy is Challenged

In Fisher, the Majority was impressed with UT’s data collection.  In the real world, not every college has the resources or personnel to match UT’s ability to assess their program.  However, colleges need to have data on hand if their policies are ever questioned.  The Court does give some insight into the types of data that are required.  First, hard numbers are good, but numbers do not tell the whole story.  Relying solely on the number of minority students on campus, pre- and post-policy, is not sufficient.  However, nuanced quantitative data, such as measuring the number of minority students across freshman survey courses in specific disciplines, would satisfy this requirement.  Second, the Court gave weight to UT’s use of anecdotal evidence, lauding the university’s interviews, retreats, and student, faculty, and staff surveys.  Third, the Court required that the reassessment of data should be “done with care,” followed by a “reasonable determination” as to whether the stated policy goals are being met.  Colleges should be mindful to compile data, quantitative and qualitative, that they can use to assess the effectiveness of their admissions policy.

  • Diversity is a Journey, Not a Destination: The Ongoing Responsibility Requirement

It is very important to note that if a college finds a workable way to include race into its admissions process, the college’s responsibilities are not fulfilled under the law.  The Fisher court requires ongoing assessments of whether or not the admissions program satisfies the college’s measureable goals.  Justice Kennedy writes that good faith efforts to comply with the law did “not diminish, however, the University’s continuing obligation to satisfy the burden” on colleges.  He adds that the university should engage in “periodic reassessment” of the effectiveness of their admissions program, considering the school’s unique experiences.  It is critical that colleges realize that even if they craft a perfect plan, periodic assessment of that plan is a required element to escape negative judicial scrutiny.  And, importantly, when the policy doesn’t meet their stated objectives, the plan should be reassessed and adjusted.

 

In sum, a university should 1) identity why diversity is a compelling interest at their campus; 2) use data to scrutinize the fairness of its admissions program; and 3) reassess whether the policy is achieving its stated goals and refine their policy as the data demands.

While affirmative action programs might be under more scrutiny in the Trump Administration, colleges and universities can continue to pursue their goal of a diverse student body by following the judicial requirements set forth for these race-conscious admissions policies.

Welcome to the New Higher Ed Law Blog!

Another school year is just around the corner.  Students will return to their dorms later this month.  Professors are busily putting the final touches on their syllabi and finishing off summer writing projects.  Administrators are hurriedly planning budgets, forming strategies, and seeking guidance on what may lie ahead for the new academic year.

Here at the Education Practice at HMBR, we are planning our own new “school year,” of sorts.  We have restarted our Higher Ed Law Blog!  We look forward to using these pages as a way to connect with you and keep you informed.  We plan on bringing you news pieces, hearings announcements, conference recaps, and analytical pieces to keep you up to date on the latest developments in higher education and to give you the advantages you need to thrive in an increasingly competitive marketplace. We also expect to start posting on the connection between higher education and related topics, such as labor, healthcare, and others.

As you read our blog, you can continue to rely on HMBR’s deep knowledge of, and multi-disciplinary approach, to higher education, drawing on our experience working in the private as well as the public sector.  We continue to be passionate about higher education and helping you achieve your academic, business, and institutional goals.

To get started, here is a list of developments that we are monitoring for the upcoming academic year as well as some suggestions about how we can help you navigate these issues:

Title IX Guidance – As has been widely publicized, the U.S. Department of Education is considering whether and, if so, how to revise its guidance on sexual harassment and sexual assault. While we cannot predict exactly what any new guidance will say, we recommend that your institution be ready with a proactive strategy for communicating to your community your values and commitment to compliance and fairness for all parties.  If the Department does issue revised guidance, we will send out a newsletter to you explaining the changes, offering new training sessions, and providing you with a path forward in this latest era of Title IX enforcement.

Academic Freedom and Free Speech – Most experts are predicting another year of high profile free speech controversies on campus. These eruptions can lead to unwanted publicity and disruptive campus upheaval that can negatively impact an institution’s public image and reputation.  However, with the right policies, colleges can continue to be a place where free expression is respected and all community members feel valued.  HMBR is well-equipped to provide training sessions on academic freedom and free speech issues as well as to provide comprehensive reviews of your campus policies and to assist you in writing new policies or handling specific incidents as they occur.

The Janus Case and Labor Issues – The Supreme Court is likely to hear a challenge that could put an end to the practice of public sector unions charging fees to non-members. The impact of the case could greatly reduce public sector unions’ political authority and potentially have a lasting effect on collective bargaining agreements for public institutions.  In addition, the movement to unionize adjunct faculty and graduate students is showing no sign of stopping.  HMBR offers a team of attorneys experienced in representing labor unions and management in a full range of labor and employment matters, providing our clients with well-informed perspectives that address complex legal and regulatory requirements as well as your critical business demands.

Additional Issues – New and Revised Financial Aid Regulations; Accreditation Issues and Program Modifications; Undocumented Students, DACA, and “Sanctuary Campuses”; Student Demographic Changes and Its Impact on Populations and Services; International Student Recruitment and Support; Advances in Education Technology and Delivery Systems

 

HMBR is uniquely positioned on all of these topics and more.  We are true problem-solvers with the experience, knowledge, and ability to provide you with comprehensive legal representation to help you successfully overcome the hurdles your institution faces.  While the new academic year will definitely have its share of challenges, our attorneys routinely assist clients in structuring and executing a wide range of creative solutions that assist colleges and universities in moving forward and achieving their institutional goals.

We look forward to keeping you informed here at the Higher Ed Law Blog.  If you have any questions, concerns, or would like us to post on a topic of interest to you, please feel free to contact us.

Here’s to a successful 2017-2018 Academic Year!