ERIC Identifier: ED355860
Publication Date: 1992-10-00
Author: Gibbs, Annette
Source: ERIC Clearinghouse on
Higher Education Washington DC.| George Washington Univ. Washington
DC. School of Education and Human Development.
Reconciling Rights and Responsibilities of Colleges and
Students: Offensive Speech, Assembly, Drug Testing and Safety. ERIC Digest.
Reconciling the rights and responsibilities of colleges and universities with
those of their students during recent years has been problematic for numerous
higher education administrators as they have sought to resolve conflicts between
students and institutions. Students have charged that administrative policies
and practice have directly conflicted with their constitutional rights, and
administrators have responded that their responsibilities as institutional
officials require them to consider the priorities of their colleges and
universities in designing and implementing policy.
WHAT RIGHTS DO COLLEGES AND UNIVERSITIES HAVE RELATIVE TO REGULATING OFFENSIVE SPEECH ON CAMPUS?
Because offensive speech is
defined by its content, regulations at public colleges and universities to
prohibit it raise important questions of boundaries and interpretations of the
First Amendment. To date, the courts have ruled against higher education
institutions' prohibiting offensive, or hate, speech because the policies failed
to distinguish sanctionable speech from protected speech. In reconciling the
rights of students and the responsibilities of the public institution,
administrators should consider:
* Speech or expression may not be punished on the basis of the subjects the
speech addresses. The government must be neutral when it regulates speech.
* Overbroad policies regulating speech have been ruled unconstitutional.
* Unduly vague policies regulating speech have been ruled unconstitutional.
* Restrictions on time, place, and manner of speech or expression appropriate
for the educational environment and for maintaining order on the campus are
* Policies based on "fighting words," even in part, cannot discriminate on
the basis of content or point of view.
* Protections and procedures regarding due process should be in place before
and followed during any disciplinary process.
WHAT ISSUES SURROUND STUDENTS' RIGHTS OF ASSOCIATION AND ASSEMBLY ON CAMPUS?
Greek social groups, gay student groups, and student
religious groups continue to charge college and university administrators with
denying their rights and privileges of recognition that other, less
controversial groups receive. Still other students assemble on an ad hoc basis,
often issue by issue, and campus demonstrations appear to have moved from
protests about apartheid in South Africa to issues like abortion and AIDS.
Several policy considerations seem appropriate:
* Once some student groups have been recognized, or registered, by their
institution, other groups should not be denied such treatment simply because the
college or university does not agree with their views.
* Student groups should be treated the same as other groups have been
treated, provided they fulfill the same procedural and substantive requirements
established by the institution.
* Colleges and universities are within their rights to emphasize, even
through public statements, that their acknowledgment of the existence of student
groups does not indicate institutional approval of the groups' or organizations'
religious, political, economic, or philosophical positions.
* Student demonstrations on public college campuses, like other associational
activities, cannot be prohibited on the basis of content or the message to be
* Greek groups that are primarily social in nature and also part of a
national organization may be treated, as a whole, differently from other student
groups in terms of institutional recognition and requirements for affiliation.
* Whatever an institution's relationship with its Greek groups, that
relationship should be conveyed to all applicable groups and their respective
national organizations before institutional recognition or affiliation.
WHAT IS THE STATUS OF MANDATORY DRUG TESTING FOR
Courts in several jurisdictions have been unwilling to accept
colleges' and universities' stated purposes for drug testing. Likewise, the NCAA
has failed to convince most courts that it, on behalf of its member
institutions, has a compelling need to test athletes randomly. While some issues
surrounding testing remain debatable, the courts appear to be developing
consensus about the questions and principles they will address.
* Whether an institution chooses to go along with the NCAA's testing
procedures or to conduct its own testing program, it should develop clear and
definitive policy objectives for its testing requirements and match those
objectives to achieve the desired and stated outcome.
* The accuracy of tests is limited, and procedural safeguards should be
incorporated in drug testing programs to allow students who test positive to
respond to or rebut the findings. Such students could be allowed access to an
additional, independent laboratory analysis.
* The courts' most recent rulings appear to support the position that
institutional mandatory drug testing programs violate the principle of
protection of privacy guaranteed in most state constitutions.
* Strong consensus is evident among the courts that colleges and universities
need to have drug education programs emphasizing prevention and rehabilitation,
not only for athletes but for all students.
Finally, because an institution, if it participates in the NCAA's testing
program, is the enforcer of any NCAA legislation against students, it could be
subject to state laws and regulations relative to such enforcement and thus find
itself between its students and the NCAA in legal claims brought by students.
WHAT RESPONSIBILITIES DO COLLEGES AND UNIVERSITIES HAVE FOR STUDENTS' SAFETY ON CAMPUS?
In situations involving the victimization of
students as well as other personal injuries to students on campus, the element
of foreseeability has become a criterion in many states for determining
colleges' and universities' liability. The extent to which an institution knew,
or should have known, that a student was exposed, or could be exposed, to a risk
of injury has become a major factor in courts' determining whether the
institution owed a duty of care to the student. The courts have ruled further
* Institutions generally are on notice of the potential for criminal harm if
similar criminal incidents have occurred in the past; harm is thus foreseeable.
* Colleges and universities should show that they exercise reasonable care to
keep their campus free from conditions that create or increase the risk of harm.
* If the college or university assumes a landowner/business invitee
relationship with its students, it may be held to similar duties of private
landlords in the maintenance of physical security on the premises.
* When higher education institutions have shown that their relationships with
students are not sufficiently special (landlord/tenant, for example), courts
have been hesitant to impose upon them a duty to protect students from harm.
* When the college or university could not foresee harm to a student, courts
have been reluctant to impose liability on the institution for the harm.
Iota Xi Chapter of Sigma Chi Fraternity v.
George Mason University, 773 F. Supp. 792 (E.D. Va. 1991).
McEvoy, Sharlene A. Spring 1992. "Campus Insecurity: Duty, Foreseeability,
and Third Party Liability." Journal of Law and Education 21: 137-54.
R.A.V. v. St. Paul, Minn., 60 L.W. 4667 (June 23, 1992), Slip.op.
Schmidt, Benno. Winter 1992. "The University and Freedom." Academe 73: 14-18.
Teagarden, C. Claude. 25 April 1991. "Suspicionless Punitive Urinalysis
Testing of College and University Student-Athletes." West's Education Law
Reporter 65: 999-1020.
This ERIC digest is based on a new full-length report in the ASHE-ERIC Higher
Education Report series, prepared by the ERIC Clearinghouse on Higher Education
in cooperation with the Association for the Study of Higher Education, and
published by the School of Education at the George Washington University.