Recent campus events and the heightened political environment have spotlighted the importance of institutions of higher education having clear, effective policies and practices for managing free speech at campus events. Whether your institution is a public university and subject to First Amendment constraints, or a private university and guided by campus speech policies, the challenges are similar: supporting open dialogue, maintaining order, and ensuring legal compliance and non-discrimination.

This alert is the third in our series designed to provide colleges and universities with practical strategies for managing safety and legal risks associated with campus events. Our prior alert on campus event safety is available here and our alert on practices for campus police managing high-profile events is available here. Our goal is to equip campus leaders with actionable strategies, tailored to the unique legal landscape of higher education. These are general recommendations and may not be suitable for every college or university. Institutions should work with legal counsel to develop actionable measures appropriate for their unique campus environment, policies, practices, and applicable law.

For Public Institutions: First Amendment & Time, Place, and Manner Restrictions

Public colleges and universities must comply with the First Amendment, which generally prohibit government entities (such as public institutions of higher education) from restricting speech based on content or viewpoint. However, public institutions may impose reasonable, content and viewpoint-neutral restrictions on the time, place, and manner of speech to further legitimate interests in safety, order, and educational mission.

Policies should outline the permitted areas on campus for demonstrations, tabling, and rallies (e.g., designated public forums, quads, auditoriums) and specify allowable times for expressive activities to avoiding disruption of classes or university business. Policies should also define the permissible manner of speech, including rules about amplified sound, signage, literature distribution, and protest tactics. In implementing policies, public colleges and universities should ensure policies are content-neutral, consistently applied, and widely disseminated (e.g., student handbooks, websites).

For Private Institutions: Campus Speech Policies

Private colleges and universities are not legally bound by the First Amendment but should adopt campus speech and protest policies that reflect institutional values, promote respectful dialogue, and protect community safety. Private institutions should also keep informed on requirements of state and federal law that impact their speech obligations.

Policies should clearly articulate the private institution’s commitment to open dialogue, academic freedom, and respectful dissent, consistent with the institution’s academic mission and values. Typical policies include specific boundaries for expressive activity, including locations, times, and rules for conduct and define behaviors that are not protected (e.g., harassment, threats, disruption of university functions). In implementing policies, private colleges and universities should ensure their policies are content-neutral, consistently applied, and widely disseminated (e.g., student handbooks, websites).

Key Risk Management Tools for All Institutions of Higher Education

• Event Registration & Advance Notice
  As we have covered in prior client alerts in this series, all colleges and universities should consider requiring advance registration for large or high-profile events, protests, or speakers, to allow for appropriate safety planning and review prior to the event. Event registration forms can be used to collect information about event location, expected attendance, and planned activities, as well as ensure compliance with the policies noted above.
  
  In planning for campus events, campuses should integrate their policies with crisis communication and emergency response plans for major events or protests, for example by providing support and guidance for counter-events, alternative forums, and restorative dialogue when controversies arise.

• Training & Education
  All colleges and universities should conduct regular training for campus law enforcement, student affairs staff, student leaders, and all faculty and staff generally on institutional speech and protest policies. Students should be informed about their rights and responsibilities regarding campus speech and protest under these institutional policies. Specialized training for student groups and campus offices that often hold events or protests is advised.

• Compliance & Enforcement
  The best policies are meaningless if they are not enforced. Colleges and universities must remember to enforce their policies uniformly, regardless of the content or viewpoint, and consistent with their institutional mission and values. Enforcement actions should be carefully documented to ensure ongoing compliance with the applicable policies as well as after action plans. 

How Hunton’s Higher Education Team Can Help

Our Higher Education team provides drafting and review of campus speech and protest policies, training for campus stakeholders on First Amendment and campus speech management, guidance on event registration practices and risk assessment, and legal review of campus enforcement actions and student conduct cases. To discuss your institution’s campus speech policies or receive customized resources, please contact your Hunton lawyer.