Volume 6, Number 1, Nov 2005
Alternative Dispute Resolution
at Public Colleges
The Free Speech Hurdle
If a public college employee is forced to choose between keeping his or her job and exercising constitutionally-protected free speech rights, the government—that is, the college—has done to the employee indirectly what it may not do directly: denied freedom of speech. It has put the employee to such a hard choice that it has deprived him or her of a constitutionally protected right. The courts, led by the United States Supreme Court, have made it clear that indirect deprivation is just as unconstitutional as direct.
Similarly, if a public college student is forced to choose between continuing his or her studies and exercising his or her free speech rights, the same deprivation may have occurred.
Consider an on-going controversy at the University of Illinois:
The nickname of the University of Illinois athletic teams is the "Fighting Illini," a reference to a loose confederation of Algonquin Indian tribes that inhabited the upper Mississippi Valley. The mascot is "Chief Illiniwek," who first came into use in 1926. The use of this Indian caricature was first challenged in 1975 as offensive to Indian peoples, and the protests have grown over the years.
In 2001, some students and faculty let it be known that they intended to begin contacting athletes that the university was recruiting, to press their point of view that the university athletic program was using an offensive mascot. The chancellor sent out an email directive to all students and employees, directing that they not contact prospective athletes, on the grounds that such contact would be a violation of National Collegiate Athletic Association recruiting rules. "We expect members of the University community to express their viewpoints without violating NCAA rules concerning contacts with prospective student-athletes," the chancellor said.
Several students and faculty members sued, alleging that the ban amounted to a prior restraint on free speech and a violation of their First Amendment rights. The federal district court held that the chancellor's ban on contact with prospective students was a First Amendment violation, and the university appealed to the federal appeals court
The federal Seventh Circuit Court of Appeals upheld the ruling of the district court: the chancellor's ban did in fact violate the First Amendment.
In a free speech case, the first question to be answered is whether the speech at issue is speech on a matter of public concern. If it is not, then the First Amendment is simply not applicable. In this case, the court said, "There is no doubt that the speech involved here concerns a matter of public concern."
Once it is determined that the speech involved is speech on a matter of public concern, then the second question is a balancing of the interests. Whose interests in this particular case are more important: the interests of the university in suppressing the speech or the interests of the students and faculty in exercising their free speech rights?
Here, the university argued that the purpose of the proposed speech was to hurt the university's recruiting efforts in order to pressure the university to drop its use of Chief Illiniwek. The university said it had a compelling interest in staying in compliance with NCAA rules. The students and faculty asserted their interest in convincing the administration that the use of Chief Illiniwek hurts the university by creating a hostile environment for Native American students.
The court said: "The free-speech interest of the plaintiffs—members of a major public university community—in questioning what they see as blatant racial stereotyping is substantial. That interest is not outweighed by fear that an athletic association [the NCAA] might not approve of what they say." Further, it is not clear that the university fully checked out with the NCAA the claim that contact with the student athletes would really lead to sanctions. Therefore, their interests prevail, and the university loses.
Most strikingly, the court indicated that the chancellor might be personally liable. As a public official, he enjoys qualified immunity from liability for free speech violations. That is, he cannot be held personally liable so long as his conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Here, the court said, the chancellor should have known that his actions were a free speech violation.
As with the resolution of Ms. Pugel's due process claim, what an incredible expenditure of time and resources! We can imagine that an alternative program of dispute resolution could reach a satisfactory conclusion to the university's problems. The difficulty is devising a program that meets the requirements of free speech.