Zoned Out! Examining Campus Speech Zones
Louisiana Law Review
In March 2002, twelve students were arrested at Florida State University for protesting outside the university's designated speech zone. The same spring, students at West Virginia University were intimidated for engaging in political speech outside that institution's two free speech zones. On November 13, 2002 prolife demonstrators were arrested when they stepped outside the free speech zone of California's Citrus Community College. A student filed suit on May 20, 2003, challenging the regulation. On March 6, 2003 suit was filed on behalf of students of the University of Maryland at College Park challenging that university's speech zone regulations governing public speaking and leafleting. A student at the University of Texas at El Paso sued on similar issues in May 2003, and a student at Texas Tech University's law school sued in June 2003. On September 30, 2004 the federal district court in the latter case found a portion of the Texas Tech speech zone policy unconstitutional. In early 2005, after a controversial student protest against illegal immigration, the president of a Latino organization at the University of North Texas called for more university oversight of student speech, asking specifically that the university administration preview the content of expressive activities scheduled for the university's speech zones. These are but a few of the incidents involving many institutions in recent years. Controversy has also occurred at: Shippensburg State University in Pennsylvania, the University of Houston, the University of South Florida Miami-Dade Community College, Appalachian State University, Tufts University, and the University of Wisconsin at Whitewater. An article in Trusteeship magazine declared: "To a greater degree than at any time in recent memory, the actions and policies of higher education institutions concerning student speech not only are being scrutinized, but they also are becoming the subject of legal challenge with potentially grave consequences."' Incidents involving campus speech zones' are frequently followed by a contentious battle involving the university, the students, and sometimes a free speech advocacy organization. Civil activist groups, such as the FIRE, the ACLU, and the Rutherford Institute, often become involved. Regardless of whether a lawsuit is filed, the confrontation is often followed by a media campaign initiated by those opposing the university's policy. The media campaign will likely disparage the university, accusing it of willfully disregarding the United States Constitution and the free speech rights of its own students. This strategic tactic is intended to focus negative attention on the university, with the goal of causing public embarrassment. The media campaign generally succeeds in achieving this goal. Such a campaign can have serious adverse effects on a public institution that depends on state appropriations, grants, and donations for its funding. It can also negatively impact the reputation of the university and harm its ability to recruit students and faculty. Clearly, use of campus speech zones by universities is a "hot topic," one which will likely continue to be the subject of controversy and litigation. What is a responsible, law-abiding public university to do about campus speech zones? Simply eliminate its use of campus speech zones before an issue arises? Wait to see whether it is sued, then react? Perhaps the university should "keep its head down" and see if this is merely another short-lived higher education phenomenon. After all, current law does not necessitate the elimination of all campus speech zones. How much time, possibly the most valuable resource of today's over-extended university official, ought to be devoted to this question in light of other seemingly more urgent questions confronting university officials? The issue of whether universities should eliminate their use of campus speech zones does not arise in a vacuum. Not only does it have First Amendment free speech implications, it is also often connected to the problem of hate speech and the controversial issue of whether universities can or should have speech codes. This "hot topic" also arises against the backdrop of post-9/11 America, a time when many Americans feel vulnerable and have heightened concerns about safety. Universities and society in general are concerned about the threat of terrorist attacks against soft targets such as universities. Some are also concerned, however, about the implications of more governmental intrusion into everyday life and the potential impact of the Patriot Act on universities and society in general. Now is a time of heightened international tensions, concern, patriotism, nationalism, distrust, feelings of vulnerability, and perhaps animosity toward certain foreigners and controversial ideas. All of these emotions are occurring during an era when the respective rights and responsibilities of the university, its students, and the community are already in flux and likely to change further. Moreover, the last several years have been times of especially scarce state funding for public higher education, during which the cost of tuition is rising at a rate higher than inflation. This raises questions as to the best allocation of resources. Will the costs for security be higher if individuals can distribute leaflets and engage in confrontational debates all over campus rather than in one defined and more easily secured location? What about large gatherings and demonstrations? Would it be easier and less costly to provide for security if these events are confined to one area of campus? What about the likelihood of large numbers of dropped leaflets everywhere if leafleting is permitted all over campus? Will clean-up costs be higher? Will slip-and-fall accidents occur if students or others slip on glossy leaflets dropped on staircases or elsewhere? It will be costly for the university to quickly dispatch workers to clean up large quantities of dropped leaflets to prevent such occurrences. Of course, if someone is injured because the dropped leaflets were not picked up quickly enough, the university could face liability for the victim's injuries, thus creating another potential financial drain on an already decimated university budget. What about noise and disruption? The concept of campus speech zones developed during the turbulent years of the 1960s and early 1970s so that campus unrest would not interfere with classes, study areas, student dormitory life, and the general business operations of universities. These concerns still exist today.
As if the foregoing was not enough, issues beyond day-to-day operations demand the time and attention of university administrators. The leaders of public universities engage constantly in efforts to obtain adequate funding from legislatures, to raise funds from donors, and to obtain grants from foundations and the government. Higher education institutions must also constantly review, revise, expand, and sometimes eliminate programs, based on factors such as community and industry needs, enrollment, and funding. Additionally, whether they are willing to admit it or not, American institutions of post-secondary education are in competition with entities offering the corporate training model of education. When confronted by these daily dilemmas, it is no wonder that some university officials feel campus speech zones are the least of their worries. So what is a university to do? Despite the demands of time, the campus speech zone issue deserves, and in fact requires, attention. Freedom of speech is inextricably connected with the essential character and purpose of the university as well as constituting one of the most treasured values of American society. Effective analysis is best accomplished when this topic receives the time and focused attention necessary to the task, without the distractions, pressure, and hype that have become common in First Amendment controversies involving universities. Without question, a public university's campus speech zone policy must comply with First Amendment standards. Adherence to constitutional requirements is as essential to the process of drafting a university speech zone regulation as meeting the university's other objectives. Scholarly writing on campus speech issues focuses, understandably, on constitutional issues. The only article specifically devoted to campus speech zones found by this author analyzes the topic primarily upon First Amendment public forum doctrine. Likewise, case law on campus speech zones focuses almost solely on the First Amendment aspects of the issue. Such case law, as well as case law on student free speech in higher education in general, ma, make mention of universities as "the marketplace of ideas," but constitutional concerns, particularly the First Amendment, remain the focal point. Court decisions determine whether a specific university's particular iteration of a campus speech zone policy is constitutional, and thus provide guidance for the drafting and design of campus speech zone regulations. They do little to help universities decide a more basic question, whether they should utilize campus speech zones at all. This crucial question has not received adequate attention. Discussion of campus speech zones is largely subsumed by discussion of student speech issues in general, and scholarly legal writing on student speech issues continues to keep constitutional issues, particularly First Amendment analysis, in the spotlight. The importance of compliance with constitutional standards is undisputable; it is absolutely mandatory and, more importantly, essential to the American way of life. However, in regards to campus speech zones, we ought not limit the discussion to constitutionality. Even if a campus speech zone regulation is properly formulated, well-drafted, supported by adequate substantial government interests, and otherwise constitutional, the analysis remains incomplete. There still remains an inadequately examined underlying question: Should a university utilize campus speech zones, and if so, how? This article focuses on that largely ignored, but fundamental question. A new analytic framework is necessary to examine campus speech zones. Specifically, decision-making with respect to these zones should be through a two-step process. Step one asks the fundamental policy questions: whether the particular university should utilize campus speech zones, and if so, how. Step two consists of designing and drafting a university campus speech zone policy that adheres to all constitutional requirements. The process should work as follows. If the answer to the essential step one question is yes, then the university should utilize that information to decide what general variety of campus speech zones meets its important interests. Only then should the decision-making progress to step two. At step two, the university designs its specific formulation of campus speech zones and drafts its regulations, ensuring that the regulations meet all constitutional requirements while also avoiding constitutional failings. At this point, the zones, as first envisioned at step one, may have to be fine-tuned to meet both constitutional standards and university needs. It is critical that the fundamental step one question be answered first. Step one enables a university to discover its true purposes for utilizing campus speech zones, to verify that those purposes align with the character of universities and the important current issues affecting the specific university, and to confirm that its campus speech zones pass constitutional muster. Although other scholars have examined step two, a comprehensive analysis of step one is surely needed. This article proposes this new analytic model and takes on the challenge of examining the essential policy question that constitutes step one. Every university is unique; therefore, no universally applicable answer to the step one question is possible. Each university presently employing or considering using campus speech zones should undertake a thorough step one analysis specific to its own unique institution. This article does not attempt to provide a "one-size-fits-all" answer to a question for which no single answer exists. Rather, it creates a framework, then carries out a comprehensive analysis of that framework to serve as a guide to universities as they undertake step one and examine the fundamental question of whether their university should utilize campus speech zones, and if so, how. The Introduction to this article outlines the problem of campus speech zones. It identifies that an essential question, namely, whether or not a university should use campus speech zones, has been lost amid the constitutional discussion in prior writings examining free speech on campus. Because there is no single, simple answer to this question, each institution must perform its own analysis. Next, Part II identifies the proposed analytic framework. Part III provides background information. This section describes the demise of the traditional in loco parentis philosophy, students' attainment of basic civil rights in their relationship with their university, and basic concepts of First Amendment law necessary to the following discussion. Part III also provides background detail on several current high profile problems impacting universities. Part IV builds the framework for analysis, then undertakes a comprehensive analysis based on that framework. As already stated, this article does not attempt to provide a single answer applicable to all universities. Rather, it provides and analyzes the framework within which each university can make its own complex, individualized analysis. As a result, this article provides a thorough, much needed examination of a fundamental policy question that previously has been obscured. Finally, Part V consists of a summary conclusion of the work.
Carol L. Zeiner, Zoned Out - Examining Campus Speech Zones, 66 LA. L. REV. 1 (2005).