The First Amendment and the Inclusive Campus: Effective Strategies

NASPA Policy and Practice Series (Volume 1, Issue 1)

OVERVIEW

Following numerous high-proﬁle incidents involving provocative speakers and organizations on college and university campuses,

student affairs leaders are revisiting free speech policies and practices to ensure alignment with the First Amendment.

Student aairs educators are also exercising care and precaution to maintain the integrity of their institutional commitments

to diversity and inclusion. This issue of Policy and Practice describes First Amendment principles, provides pertinent case

studies, and summarizes eective practices to help leaders manage controversial speakers and demonstrators while promoting

inclusive campus environments.

Issue No. 3 | May 2018

Andrew Q. Morse

The First Amendment and the Inclusive Campus

Effective Strategies for Leaders in Student Affairs

NASPA Policy and Practice Series (Volume 1, Issue 1)

THE AUTHOR

Andrew Morse is assistant to the president for board and governmental relations at the

University of Northern Iowa (UNI). In this role, he oversees the Ofﬁce of Governmental

Relations, assists with strategic initiatives related to the Iowa Board of Regents, and directs

the university’s federal policy initiatives and priorities. Prior to UNI, he was a consultant and

project director at Keeling & Associates. He served NASPA as director for policy research

and advocacy, directing a portfolio of state and federal public policy research and advocacy

initiatives in partnership with board members, volunteers, and association partners. He holds

a Bachelor of Arts in psychology from UNI and Master and Doctor of Philosophy degrees in

higher education administration from The University of Tennessee, Knoxville.

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and retrieval system without written permission from the publisher.

NASPA does not discriminate on the basis of race, color, national origin,

religion, sex, age, gender identity, gender expression, affectional or sexual

orientation, or disability in any of its policies, programs, and services.

NASPA Policy and Practice Series (Volume 1, Issue 1)

EXECUTIVE SUMMARY

This issue of Policy and Practice offers strategies

to address key aspects of managing controversial

speakers and demonstrations on college and university

campuses. Further, it provides ideas and examples for

challenging divisive speech when appropriate; that is,

engaging such speech as an opportunity for reflection

and action in order to uphold the values and promote

the intellectual vitality of our campus communities.

In addition to the architecture of federal law, court

interpretation, and published best practices in

the field, interviews with five vice presidents for

student affairs who managed their campus’s planning

for and responses to controversial speakers and

demonstrations following the 2016 presidential

election guided the development of this brief. Their

campuses range from midsize to large public and

private colleges and universities in rural and urban

settings. The identity of each participant has been

kept confidential, given the sensitive subject matter

and their leadership roles on campus. However,

additional examples were obtained from publicly

available news articles and scholarly literature.

Several limitations are worth noting for this brief.

Five leading professionals were interviewed about

the strategies and practices employed to manage

controversial speakers or demonstrations on their

campuses. However, this brief was not developed under

the presumption that the practices employed by those

interviewed will work effectively across institutions

regardless of sector, size, political climate, and campus

culture, to name a few factors that may nuance one

campus’s approach versus another. This publication

is a guidepost for discussion and consideration for

professionals who are tasked with leading and managing

institutional planning for and response to controversial

speech and demonstrations on campus.

Another important limitation to note is that only a

few forms of divisive speech and demonstration are

addressed in this brief; notably, campus planning for

and responses to anticipated speakers and protests

with a physical presence on campus. The brief does

not explore controversial speech and demonstration in

which the borders are not bound to a physical space,

such as those that may occur via social media, or forms

of speech or demonstration that occur without notice.

Additional inquiry is needed to address the issues and

considerations in planning for and responding to these

and other forms of controversial speech.

This brief should be used to support, but not replace,

the necessary conversations with senior leaders,

attorneys, campus safety and facilities personnel,

and others who must be involved in planning for and

responding to controversial speakers and events.

Upholding free speech is a necessary, but sometimes

complicated, task for leaders in higher education. This

brief serves as a resource to help inform discussion

among campus leadership teams that must carefully

consider the factors that ensure their campus’s

policies and practices protect free speech rights and

uphold the integrity of their mission and values.

NASPA Policy and Practice Series (Issue 3)

These challenges are not just philosophical, but also

practical in nature. How can college and university leaders

make policies related to free speech clear and understood

by the campus community and guests alike? How do leaders

anticipate—and cover—the expenditures associated with

controversial speakers or demonstrations that come to

campus outside of the regular invitation process? For

which scenarios can leaders plan, and for which can they

not, and—in either case—who must be involved and in

what capacity? What steps can leaders take to uphold

the fabric of institutional values, as demonstrations and

speech that run in stark contrast to these values are

taking place? How can leaders best promote the safety

of campus communities? These mark just a few top-

level considerations for what is a deeply complex set of

challenges confronting senior leadership teams.

THE FIRST AMENDMENT:

AN OVERVIEW OF LEGAL PRINCIPLES

Within parameters discussed throughout this brief, the First

Amendment of the U.S. Constitution protects individuals

from government restrictions on speech, expression, and

assembly. The First Amendment applies to public, but

not private, colleges and universities because they are

considered government actors. However, the vice presidents

of private colleges and universities who were interviewed

for this publication often employed First Amendment legal

principles to ensure a broad spectrum of viewpoints are

represented on their campuses.

The following sections articulate the legal principles that

form the contours of public campuses’ obligations for

upholding First Amendment protections of free speech,

expression, and assembly.

TIME, PLACE, AND MANNER

The U.S. Supreme Court allows educational institutions,

including colleges and universities, to apply “time, place,

and manner” limitations on speech, including on campus

speakers and demonstrators (Cox v. New Hampshire, 1941;

McCullen v. Coakley, 2014; Perry Education Association

v. Perry Local Educators’ Association, 1983; Ward v. Rock

Against Racism, 1989). The purpose of time, place, and

manner restrictions is to regulate speech without impeding

constitutionally protected speech. The U.S. Supreme Court

requires that these limitations not be favorable to one

perspective or another, serve a signiﬁcant government

interest, be narrowly tailored to achieve that interest, and

offer alternative options for speech. Public institutions,

which are funded by taxpayer dollars, are considered

government entities and, as such, are restricted from

impeding speech beyond the narrow contours of time, place,

and manner (Perry Education Association v. Perry Local

Educators’ Association, 1983).

Restrictions on time may include designations on the

length, frequency, or time(s) that such activities can occur.

However, the courts have afﬁrmed that time restrictions

placed on speech must be reasonable. Public colleges and

universities that restrict speakers or demonstrators from

hosting events on campus during the daytime, for example,

face the risk of violating reasonable time restrictions on

campus. However, colleges and universities have used the

time restriction to articulate that campus demonstrations

cannot take place after midnight.

Limitations on place might include speciﬁcations regarding

the areas of a campus that can be used for free speech,

including areas of a campus that require a reservation.

Public institutions must ensure that any restrictions

on access to certain campus property ensure content

neutrality, serve a signiﬁcant government interest, be

narrowly tailored to achieve that interest, and provide

ample alternatives.

The First Amendment and the Inclusive Campus

Effective Strategies for Leaders in Student Affairs

ecent national headlines such as “War on Campus: The Escalating Battle Over College Free Speech” (McLaughlin,

2017), “The High Cost of Free Speech at Yale” (Weinstein, 2015), and “Campus Chiefs Violated Student Rights” (2017)

have characterized the debate on the appropriate courses of action by campus administrators when controversial

speech and demonstrations occur on campus. From Charlottesville to Berkeley, college and university leaders

nationwide face the ongoing challenges of planning for and responding to divisive campus speakers and demonstrations.

NASPA Policy and Practice Series (Issue 3)

Manner restrictions do not limit content, but instead relate

to the form of communication used to express certain views,

such as control of volume so as to not affect the ability for a

regularly scheduled class to convene.

FORUM DESIGNATIONS

The U.S. Supreme Court has deﬁned three types of public

forum: traditional public forums, designated or limited public

forums, and nonpublic forums (Perry Education Association

v. Perry Local Educators’ Association, 1983). Public colleges

and universities can support the consistent, content-neutral

enforcement of time, place, and manner requirements by

deﬁning in written policy the campus spaces that are treated

as traditional, designated, and nonpublic forums.

Traditional public forums are open to all expression protected

under the First Amendment. Public parks, sidewalks, and

streets are typically treated as traditional public forums. Many

First Amendment advocates have sought to establish all

outdoor areas of public college and university campuses as

traditional public forums.

By contrast, some public colleges and universities have

established “free speech zones” in order to restrict speech,

expression, or demonstrations to designated areas on

campus. These spaces have come under court scrutiny

in recent years. In Van Tuinen v. Yosemite Community

College District et al. (2014), Modesto Junior College

(MJC) barred three of its students from distributing copies

of the U.S. Constitution in front of the student center.

Representatives of MJC told students they must register an

event in advance, and that all events must be held inside the

institution’s free speech area. MJC settled its lawsuit upon

revision of its campus policies to allow free expression in

outdoor areas of campus.

However, at least one court has drawn distinctions

between campuses’ First Amendment obligations

regarding access to public forums of students, employees,

and recognized campus organizations and that of

outside individuals or organizations not sponsored by a

campus afﬁliate. In Bloedorn v. Grube (2011), the U.S. 11

Circuit Court of Appeals ruled that physical likeness of

public campus spaces to those of non-campus-based

traditional public forums (e.g., public parks or sidewalks)

is insufﬁcient to conclude that such open spaces are

bona ﬁde traditional public forums. In the case of outside,

unafﬁliated speakers or demonstrators, the 11

Circuit

Court ruled that the educational purpose of the public

campus allowed Georgia Southern University (GSU) to limit

the campus presence of those who are not sponsored by a

member of the campus community—as long as the policy

did not violate time, place, or manner restrictions.

In the case, Bloedorn—a traveling evangelist who frequently

preached in outdoor locations on college and university

campuses—sought an injunction on GSU’s policy that,

for an unsponsored speaker not afﬁliated with the public

institution, limited the duration and frequency of his speech

on the campus. Bloedorn was conﬁned to the designated

free speech area, which was located at a popular pedestrian

intersection of campus. According to GSU policy, the plaintiff

was required to ﬁle advanced notice and receive approval to

use the campus’s free speech zone, and he was limited to no

more than an hour and a half once per month.

Designated/limited public forums are spaces where the

public college or university restricts the space to certain

participants. These forums are subject to time, place, and

manner requirements in regulating, without violating, an

individual or group’s free speech rights. The Bloedorn

v. Grube case provides helpful insight on the limitations of

designated public forums. In its Assembly and Demonstration

Policy, GSU (2018) established all but the designated

free speech zone as designated/limited public forums by

articulating that (a) students, faculty, and staff—individually

or in registered groups—were free to express their views in

all parts of campus, and that (b) “persons unafﬁliated with

the university were free to express their views . . . in the

Designated Public Forum Area” (para. 3). The policy intended

to provide content-neutral limitations on the presence of

unafﬁliated speakers in order to provide priority access to

students, faculty, and staff regarding the use of the space to

achieve the educational purpose of the institution. The court

ruled in favor of GSU, arguing that the institution had provided

content-neutral regulation that was narrowly tailored to serve

a legitimate government interest (e.g., the furtherance of

its educational mission) and provided a sufﬁcient forum for

speech. The following excerpt from the opinion helped draw

distinctions between traditional public forums and the public

campus setting in relation to the presence of speakers or

demonstrators who are unafﬁliated with the institution:

Even though GSU’s campus possesses many of the

characteristics of a public forum—including open

sidewalks, streets, and pedestrian malls—it differs in

many important ways from public streets or parks. . . .

Perhaps most important, the purpose of a university

is strikingly different from that of a public park. Its

essential function is not to provide a forum for general

public expression and assembly; rather, the university

campus is an enclave created for the pursuit of higher

learning by its admitted and registered students and by

its faculty. (Section IIIA, para. 6)

In 2015, Texas A&M University updated its Rules on Freedom

of Expression to prioritize the use of campus facilities for

speakers or events to university-sponsored organizations.

According to the rule, a request for space is required

NASPA Policy and Practice Series (Issue 3)

THE FIRST AMENDMENT, CONTROVERSIAL SPEECH,

AND HIGHER EDUCATION

When asked to consider requests by speakers or organizers

whose content or goals contrast from their campus’s

mission and values, leaders in higher education face

important decisions about the appropriate steps to respond

to or plan for speech, expression, or assembly that may

be controversial, or even incendiary. In some cases, the

popular step may be to deny requests by such speakers or

place contours on assembly that limit the presence of those

whose views are met with protest or attempted obstruction.

The problem, however, is that—with few exceptions—

denying speech or expression creates risk for legal

challenges to the constitutional soundness of a campus’s

free speech policies and practices.

The constitutional principles of (a) time, place, and manner

restrictions; (b) forum designations; and (c) due process

provide a broad framework for regulating—without

hindering—speech, expression, and assembly on public

college and university campuses. In the next section, a

litany of case law deﬁnes the strict limitations of public

colleges and universities to apply these principles to

regulate speech, expression, or assembly. Of course,

the inability to deny or heavily restrict many forms of

controversial speech, expression, or assembly portends

practical challenges for college and university leaders to

uphold their consonant responsibility to afﬁrm inclusive

and culturally engaging campus environments. Later in this

brief, campus leaders who have managed divisive speakers

share strategies and practices for maintaining the integrity

of their campus’s mission and values while upholding the

First Amendment.

THE FIRST AMENDMENT AND THE MYTH OF PUBLIC

CAMPUSES’ PROTECTION FROM (MANY CASES OF)

HATE SPEECH

Addressing the campus response to a visit by a controversial

speaker or organization was a key challenge confronted

by the vice presidents interviewed for this brief. One vice

president said, “We got grilled for weeks leading up to the

event as to why we were allowing [the individual] to speak

when our campus touted itself as being a welcoming and

inclusive place to diverse individuals.” Another shared,

“Students were most upset with us when we did not reject

[the individual] from coming to campus. Many told us they

didn’t feel safe or welcome here anymore.” Overwhelmingly,

the feedback from campus constituents was negative,

encouraging their leaders to limit—or restrict—the

presence of the speaker or organization from the institution.

In fact, the widespread concern shared with the vice

presidents interviewed for this brief is reﬂected in a recent

for campus organizations seeking to hold an event that

will draw 25 or more people. The sponsoring campus

organization must identify at least one of its ofﬁcers (e.g.,

president, vice president, secretary, or other) that will be

in attendance for the duration of the event (Texas A&M

University, 2015). In addition, the requesting organization is

required to list basic details of the event and the planned

activities of the speaker(s) or demonstrator(s), such as

whether a rally, protest, or picketed march will take place.

The rule states that the university reserves the right

to locate the event to ensure that normative campus

operations remain uninterrupted (Texas A&M University,

2015). This policy enables the university to employ a

content-neutral approach to regulate the presence of

outside speakers. Thus, the university can allow or restrict

an outside speaker’s request to use the campus’s limited

public forums, such as the student union or other meeting

spaces, without regard to content.

Nonpublic forums are not open to public expression and are

restricted to a particular purpose, such as departmental

ofﬁce spaces or on-campus housing. It is not lawful, for

instance, to shout down a professor delivering a classroom

lecture, or to hold a protest outside the private residence of

a college or university employee.

DUE PROCESS

The 14

Amendment to the U.S. Constitution provides

individuals with due process rights under the law. Due

process requires the government, including public

colleges and universities, to ensure individuals, including

students, receive appropriate notice of a violation of

the law and the right to be heard through a hearing

(U.S. Const. amend. XIV). Because public colleges and

universities have little latitude to deviate from First

Amendment protections in other public settings, it is

critically important that leaders of these campuses

establish policies and practices that ensure alleged

violations of campus policy regarding speech, expression,

and assembly afford students their rights to due process.

For example, immediately expelling students for using

highly inappropriate, discriminatory, and hateful language

may create an opportunity for the affected students to

pose a legal challenge regarding the campus’s violation of

their due process rights. Following the careful practices

of providing notice and a hearing are steps that public

college and university leaders should follow to uphold

constitutional responsibilities while protecting the

integrity of the institution’s mission and values.

NASPA Policy and Practice Series (Issue 3)

Pew Research Poll that found a sizable proportion of the U.S.

population believes there should be limitations on offensive

speech (Wike & Simmons, 2015). More than one quarter

of poll respondents across all age groups believe that the

government should be able to place limits on speech that

is offensive to minorities. Among millennials (ages 18–34),

a full 40% believe the government should be able to place

such limitations.

Although there is substantial public support for limiting

offensive speech, there is an absence of legal architecture

enabling governments—and, by extension, public colleges

and universities—from doing so. While establishing or

strengthening policies and practices that afﬁrm institutional

mission while upholding First Amendment responsibilities,

it is important for student affairs leaders to understand that

hate speech is largely protected—with a few exceptions

described in this brief—in law.

In fact, the courts have overwhelmingly overturned campus

policies that placed limits on speech or expression that

offend others or are otherwise hateful in nature. More

than ﬁve decades of case law have afﬁrmed institutional

obligations to allow such speech on campus. A sampling of

court cases is summarized below.

HEALY V. JAMES (1972)

Students enrolled at Central Connecticut State College

sought to form a campus chapter of Students for a

Democratic Society (SDS). The campus recognition would

have granted the group access to campus facilities, the

school newspaper, and the school bulletin board. The

president denied the group’s request on the grounds that

the SDS promoted disruption. The U.S. Supreme Court

decided that the college failed to provide convincing

evidence that SDS activities would constitute unprotected

speech. One of the critical issues argued in this case was

the chapter’s afﬁliation with the national SDS organization,

which was unpopular with many at the time. The college

denied the organization’s request for recognition for

fear that its unpopularity may have caused disruption

on campus. Unpopularity was insufﬁcient grounds for

nonrecognition on campus.

DOE V. UNIVERSITY OF MICHIGAN (1989)

Following incidents that involved the use of racial slurs on

campus, the University of Michigan published a policy in

1989 that prohibited stigmatization or victimization of an

individual on the basis of protected categories. Speciﬁcally,

the policy read,

any behavior, verbal or physical, that stigmatizes or

victimizes an individual on the basis of race, ethnicity,

religion, sex, sexual orientation, creed, national origin,

age, marital status, handicap or Vietnam-era veteran

status, and that

a. Involves an express or implied threat to an

individual’s academic efforts, employment,

participation in University sponsored extra-

curricular activities or personal safety, or

b. Has the purpose or reasonably foreseeable effect

of interfering with an individual’s academic efforts,

employment, participation in University sponsored

extra-curricular activities or personal safety, or

c. Creates an intimidating, hostile, or demeaning

environment for educational pursuits, employment

or participation in University-sponsored extra-

curricular activities. (Section IIIA)

Doe, a psychology graduate student who described his

research as the interdisciplinary study of the biological

bases of human differences in personality and mental

abilities, alleged that controversial theories undergirding

his ﬁeld of study could be viewed as sexist or racist, and

that the University of Michigan’s policy could unfairly

sanction him for conducting research. In an afﬁdavit to

the court, Doe also described his desire to talk about

differences in his classroom discussions. In its review of

the case, the federal court found with Doe and struck down

the university’s antidiscrimination policy on the basis that

prohibiting speech solely on the basis that it is offensive or

unseemly is unconstitutionally overbroad.

UW–MILWAUKEE POST V. BOARD OF REGENTS OF THE

UNIVERSITY OF WISCONSIN (1991)

In 1988, the University of Wisconsin (UW) Board of Regents

adopted a systemwide plan for diversity and inclusion,

Design for Diversity, and directed each of its 26 campuses

to develop nondiscrimination policies. In addition, the Board

of Regents developed general guidelines that prohibited

racist conduct, and assembled a workgroup to develop

recommendations to amend each campus’s student codes

of conduct. The ﬁnal policy adopted by the Board of Regents

stipulated that:

The university may discipline a student in non-

academic matters in the following situations:

(2)(a) For racist or discriminatory comments, epithets

or other expressive behavior directed at an individual

or on separate occasions at different individuals, or for

physical conduct, if such comments, epithets or other

expressive behavior or physical conduct intentionally:

NASPA Policy and Practice Series (Issue 3)

1. Demean the race, sex, religion, color, creed,

disability, sexual orientation, national origin,

ancestry or age of the individual or individuals; and

2. Creates an intimidating, hostile, or demeaning

environment for education, university-related

work, or other university-authorized activity.

(Section IB)

The court found the Board of Regents’ antidiscrimination

policy unconstitutional, stating that UW’s policy was

unduly vague because it is ambiguous as to whether the

regulated speech must actually demean the listener

and create an intimidating, hostile or demeaning

environment for education or whether the speaker

must merely intend to demean the listener and create

such an environment. (Section IIB(2))

In their judgment, the court acknowledged that racism and

bigotry violate the goals of education, but held that freedom

of speech “is almost absolute in our land” (Section III, para. 2).

COLLEGE REPUBLICANS AT SAN FRANCISCO STATE UNIVERSITY

V. REED (2007)

In this case, the U.S. District Court of California was asked to

decide whether a public institution can punish students for

behavior that is “inconsistent with [the university’s] goals,

principles, and policies” (Section IA, para. 8), or for engaging

in uncivil behavior, particular when such actions intend to

intimidate, harass, or threaten another person. (Section IA,

para. 8) The case followed an event at San Francisco State

University (SFSU) during which the College Republicans

hosted an antiterrorism rally where students stepped on

Hamas and Hezbollah ﬂags. Offended students ﬁled charges

on the basis that such actions intended to incite, were

uncivil, and created a hostile environment.

Again, the court ruled with the plaintiffs on the basis of

vagueness and overly broad language in the university’s

policy. The court ruled that prohibiting conduct viewed as

“uncivil,” or that by itself, independent of any real threat

directed to a person, could be viewed as “intimidating”

or “harassing” in its nature could apply to conduct that

is protected under the First Amendment. In the following

excerpt from the court’s opinion, the court articulates

instances of conduct in which incivility is protected under

the First Amendment, but stood in violation of SFSU’s policy:

The First Amendment difﬁculty with this kind of

mandate should be obvious: the requirement “to be civil

to one another” and the directive to eschew behaviors

that are not consistent with “good citizenship”

reasonably can be understood as prohibiting the

kind of communication that it is necessary to use to

convey the full emotional power with which a speaker

embraces her ideas or the intensity and richness of

the feelings that attach her to her cause. Similarly,

mandating civility could deprive speakers of the

tools they most need to connect emotionally with

their audience, to move their audience to share their

passion. (Section II, para. 33)

DETERMINING WHEN PUBLIC INSTITUTIONS CAN ACT ON

HATE SPEECH

Although case law has upheld protections for controversial

content, even when such content can be broadly classiﬁed

as hate speech, there are instances when a campus can

punish individuals for using such speech. Speech is not

protected when it constitutes a “true threat” to a speciﬁed

target or it otherwise intends to incite violence. The courts

have set parameters on speech that is not protected

by the First Amendment (Elonis v. United States, 2015;

Virginia v. Black, 2003). When speech or expression can be

determined as a true threat to the safety or well-being of

others, colleges and universities may restrict such speech.

Incidents that may constitute a true threat require careful

examination of the context of speech or expression before

restricting the speech or punishing those who engaged in it.

◊ Was the threat directed at an individual or specific

individuals? Generally, a true threat is made toward a

specific individual or individuals.

◊ Can the individual act on their hate speech? For

example, a speaker at a campus event who targets a

specific individual during an in-person speech could

have created a true threat because the individual’s

presence in the space would enable them to deliver on

the threat.

◊ Does the speech have the intent and likelihood of

inciting violence? Calling on a crowd to engage in direct

acts of violence against a specific individual or set of

individuals could be considered an intentional incitement

of violence.

WHEN RESPONSIBILITIES COLLIDE:

THE RULE OF LAW AND MISSION INTEGRITY

College and university leaders, including those in student

affairs, navigate the rule of law with the moral responsibility

of inclusion on their campuses. Given the litany of case

law protecting controversial—even incendiary—speech

on campuses, efforts to limit the presence of those who

represent views that many deﬁne as hate speech may lead

to costly and unsuccessful litigation. Following a recent

cancellation of a contractual agreement that would allow

Richard Spencer to speak on the University of Auburn

NASPA Policy and Practice Series (Issue 3)

campus, for instance, a federal judge ruled that the speech

must go on under the protection of the First Amendment,

citing that the institution’s allegation of the potential for

violence was speculative (Andrews, 2017; Padgett v. Auburn

University et al., 2017).

On the other hand, some colleges and universities have

embraced a different tack by using the First Amendment to

address the campus presence of hate groups or incendiary

speakers. This year, two campuses within the University of

Tennessee (UT) System—Knoxville and Chattanooga—were

confronted by the uninvited presence of a white nationalist

group. In a response to the protest, UT System President Joe

DiPietro (2018) acknowledged the constitutional protections

placed on even “ignorant” and “repulsive” speech, but

called on higher education to invoke its educational mission

to push back on the messages that groups such as these

represent:

The ugly reality is, extremist groups are actively

organizing, targeting colleges and universities in an

attempt to be heard and to grow their ranks. Hate

groups also target some universities on the basis of

their principles of inclusion and commitment to free

speech. . . At UT Knoxville, the white supremacist group

Traditionalist Workers Party was not invited to appear

on campus, but followed UT policy on use of campus

facilities by non-University speakers in seeking to

conduct an event. Now, let me be clear: Every campus

and enterprise of the statewide University of Tennessee

system respects and upholds the constitutionally

protected First Amendment right to free speech which,

history has shown, also can include ignorant, repulsive

speech. . . .The statewide UT system also respects and

upholds principles that run counter to hateful speech—

inclusion, tolerance and civility—that I emphasize here

for every person who reads these words. . . . History is

littered with the tragedy of unchecked hate, racism and

violence. And at the University of Tennessee, we should

bluntly call out what is wrong: Hate, racism and violence

are wrong. There is no place for them on any of our

campuses or university facilities. (paras. 2–8)

Frustration by our campus communities is, of course,

warranted. Colleges and universities represent engines

of knowledge and the pursuit of truth. They challenge

the status quo and push against ignorance, challenging

through their teaching and learning missions the

scourge of intolerance, bigotry, and violence that

continues to plague our nation. Other than serving as a

reminder of the darkness that is created by bigotry and

intolerance, these views should have no presence in

higher education’s light.

The vice presidents who were interviewed for this brief cited

tensions between the First Amendment and maintaining

safe, inclusive campuses for their students. For example,

one vice president was asked by a student organization that

opposed a controversial speaker on campus, “Why are you

letting them here?” Another vice president was asked, “How

can you say you care about diversity and inclusion?” The

interviewees reﬂected on what it would have meant for their

institution to deny space for a contentious speaker. One

individual said the following:

If we would have said no, we knew [the speaker] was

going to sue us. He would have won, and he would have

also played the victim card to a national audience at

a time when he and others just like him are trying to

create a narrative [that] the colleges and universities

are undermining freedom so they can increase

members who believe in their cause. In this case,

saying no would have helped him.

The responsibilities of free speech and inclusion do not

have to undercut one another. Colleges and universities

must find ways to protect free speech on their campuses

while upholding the principles of higher learning, which

must involve maintaining the integrity of our values

for diversity and inclusion. We must also maintain our

consonant responsibilities to promote the safety of the

students, employees, and visitors on our campuses.

Indeed, colleges and universities are confronted with

a complex set of tasks to ensure we maintain mission

integrity while not running afoul with the law. Of course,

there are leaders who have managed these consonant

responsibilities and, in doing so, have established a

foundation for others who are confronted with similar

challenges to consider. The sections that follow share

the experiences and insights of vice presidents who are

leaders in managing the presence of hate speakers and

events on their campuses.

PREPARING FOR AND MANAGING OFFENSIVE—

BUT PROTECTED—SPEECH: THE VOICES OF LEADERS

IN STUDENT AFFAIRS

The vice presidents interviewed for this brief shared several

practices they used when confronted with controversial

speakers and events on campus in light of being tasked with

protecting free speech while upholding values for diversity

and inclusivity. Each vice president discussed the strategies

and practices employed from their vantage point as both

a member of the campus leadership team and the leader

of the campus student affairs division. The vice presidents

addressed considerations and actions prior to, during, and

after the speaker or event.

NASPA Policy and Practice Series (Issue 3)

Several strategies emerged through these conversations:

coordination across units, communication strategies,

safety, cost, and education. This brief summarizes the

vice presidents’ insights and experiences related to

each strategy. The following recommendations may

serve as a guidepost for readers who may be confronted

with managing highly controversial speakers on their

campuses, or as a resource for those who are otherwise

curious about studying campus responses to divisive, or

even hateful, speech.

1. INTEGRATE CAMPUS STAKEHOLDERS IN PLANNING,

MANAGEMENT, AND ASSESSMENT

Each vice president interviewed for this brief spoke

about the importance of, as one put it, “having an all-

hands-on-deck” approach to planning for and managing

speakers or events on campus. One vice president

shared, for example, that their campus strove to

maintain a “culture of collaboration” by ensuring that

all campus partners that held a stake in any particular

development or challenge confronting the campus were

made aware of the issue and had an opportunity to help

plan for or respond as a cross-functional team. The vice

president shared, “We had a culture of collaboration and

communication in place long before [the controversial

speaker] came to our campus. That enabled us—our

facilities, campus safety, communications, student

affairs—to be ready.” For the vice president interviewees,

embracing a culture of collaboration—a mutual sense of

partnership across departments and divisions—allowed

those who could help identify and address considerations

related to safety, cost, and other needs to be engaged

early in the process. This approach helped minimize the

likelihood that any critical considerations were missed,

and gave campus stakeholders time to prepare for the

speaker or event on their campus.

The vice presidents offered the following observations

and experiences to integrate campus partners in

preparing for a divisive speaker or event:

◊ Conduct cross-functional scenario planning (prior

to a request). Identifying and preparing for problems

that may occur during the campus presence of an

offensive speaker or organization—or during a protest

or other demonstration—enables the campus to be

prepared for potential incidents. Of course, no one

can predict all possible scenarios during an event or

demonstration, but examples of what has happened

can provide guideposts to enable cross-functional

campus teams to develop an integrated plan for

preparing for and managing such incidents, should

they occur on campus.

Such scenarios may include planning a set of protocols

for spontaneous protest, or managing a hostile crowd at

an event in a specific campus facility or outdoor location

to promote the safety of all participants. Institutions

should identify and discuss the steps; assign the

individuals responsible for each step; designate back-

ups in cases of personnel absence; and identify any

gaps or resource needs to ensure the campus is ready

for situations that may pose a security, cost, or other

challenge. Campuses should routinely conduct these

exercises to amend existing protocols or identify new

scenarios that may arise.

◊ Pull stakeholders together (as soon as possible after

a request). Once a request has been received from a

student or other campus organization seeking to host

a speaker who may represent views that are highly

offensive to some, the cross-functional team should

convene to brief members and discuss security, cost,

logistical, and other implications. This group can review

the request and begin planning for the speaker, event, or

demonstration. Regardless of if the group is responsible

for evaluating whether the speaker’s or organization’s

views represent constitutionally protected speech,

the group should ensure that any limits on speech

or expression do not violate time, place, and manner

restrictions, forum designations, or the other First

Amendment principles discussed throughout this brief.

◊ Conduct cross-functional postassessment (for planned

or spontaneous speech or demonstrations). Following

the speaker, event, or demonstration, the cross-functional

team should convene to assess campus strengths or areas

for improvement. Postassessments should be documented;

include examples of what worked well or recommendations

on what could be improved to strengthen campus policy

and practice in support of campus goals to provide safe,

open forums for the discussion and expression of ideas.

◊ Ensure campus policies are consistently enforced

and regularly assessed. To avoid running afoul of First

Amendment principles, campus policies regarding free

speech and expression must be consistently enforced

to avoid judgments that are not content neutral, do not

advance a legitimate government interest, or provide

insufficient alternatives for speech. Those involved

in enforcing campus policy related to free speech

and expression, requests by outside speakers and

organizations, and requests by student groups and

campus-sponsored organizations, as well as similar

policies, should receive training on time, place, and

manner restrictions, forum designations, due process,

and other First Amendment principles.

NASPA Policy and Practice Series (Issue 3)

2. COMMUNICATE WITH CAMPUS CONSTITUENCIES

The interviewed vice presidents from public colleges and

universities shared that it is unreasonable to expect all

members of the campus community, especially students,

to know or understand campus obligations for upholding

First Amendment rights. These vice presidents therefore

recommended frequent and open communication

across campus constituencies not only about what

these obligations mean when an offensive speaker or

organization comes to campus, but also about how the

institution maintains the integrity of its mission and values.

They offered the following suggestions for communicating

with campus constituents when faced with the campus

presence of offensive speech or expression:

◊ Presidential statements matter. The University of Florida,

University of Michigan, and UT provide powerful examples

of the messages that college and university presidents

can send to the community to contrast their institution’s

mission and values from offensive, constitutionally

protected speakers and organizations seeking to hold

events or demonstrations on their campuses (Davenport,

2018; DiPietro, 2018; Fuchs, 2017; Schlissel, 2017). Their

statements give credence to the protection that offensive,

intolerant speech is offered by the U.S. Constitution while

also notifying readers that such views do not represent the

values and principles of higher learning or a vibrant and

inclusive society. Such statements also allow institution

leaders to speak directly to their campus about the

importance of the values and principles upheld by the

institution, and to promote campus events or organizations

that align with those values and principles.

◊ Listen to and empathize with members of the campus

community. Members of campus communities care about

one another. They disdain actions that tear down students,

faculty, or staff. They hold to a high standard the important

work of higher education and its power to transform

lives. It is no surprise that when outside speakers and

organizers aim to advance goals that run counter to an

institution’s mission and values—and the campus cultures

that advance them—members of the community speak

out. And, of course, as members of these communities,

student affairs leaders may find themselves standing with

their colleagues and students. As such, leaders in student

affairs should listen to and empathize with the concerns

of the campus community, and explain the campus’s

responsibilities for upholding First Amendment or other

free speech responsibilities. Leaders in student affairs

may also communicate alternative options prior to, during,

or after the controversial speaker or event that represent

the mission and values of the institution, or create spaces

for members of the campus communities to share or

express their views.

◊ Communicate the (public) campus’s First Amendment

responsibilities. Leaders in student affairs at public

colleges and universities may also receive questions

about why the institution is allowing a contentious

speaker or organization to hold an event on campus.

These are good opportunities to explain the campus’s

obligations to uphold the First Amendment, and to create

space for members of the campus community to learn

about alternative strategies to address offensive speech

that do not violate constitutionally protected speech or

expression. Such strategies include, but are not limited

to, those listed in recommendation 5 (see page 14).

3. EMBRACE SAFETY AS THE RESPONSIBILITY OF THE

CAMPUS—AND THE EVENT PARTICIPANTS

Protecting the safety of those who attend events or

demonstrations involving controversial speech is, of

course, a critically important task for campus leaders.

During an interview for this brief, one vice president shared

the following:

We walked through scenarios for weeks. We planned

and thought through the logistics, the safety

considerations of the physical space, the security we

needed. But we also knew that the unexpected could

happen. That there was still a chance that something

bad could happen.

Without disclosing details that would reveal the identity of

those interviewed, several examples illustrate the safety

concerns that did arise during their campus events.

Physical violence broke out near an event on one campus.

Arrests occurred on several others. Spontaneous marches

took place during some events, and attendees attempted

to shout down the speakers at others. The vice presidents

shared the practices they employed prior to, during, and

after the event to promote the safety of the participants,

the speaker or organization, and others. What follows is a

summary of these practices:

◊ Set expectations on campus. Several vice presidents

interviewed for this brief talked about assertively and

diplomatically setting the expectation with students

through in-person visits and other communication

channels that violence would not be tolerated prior to,

during, or after the divisive event or demonstration on

their campus. Some embraced in-person expectation

setting as an opportunity to have a dialogue and to

promote alternatives to violence, such as nonviolent

counterprotest, alternative programming, or peer

discussion, that enable students to address their

concerns or frustrations with the speaker’s or

organization’s offensive views or goals.

NASPA Policy and Practice Series (Issue 3)

◊ Screen for weapons. The vice presidents recommended

checking bags and screening for weapons at each

entrance to the facility housing the controversial speaker

or event.

◊ Distribute participation notices at the door of the event.

One vice president suggested that attendees of an

event featuring a contentious speaker be provided

with a written notice at the door of the venue that

outlines their responsibilities as a participant. The vice

president suggested that the waiver explicitly state that

the attendee cannot assault, shout down, or otherwise

unreasonably disrupt the speaker, and that engaging in

such conduct will lead to the attendee’s removal. The

vice president recommended that the waiver clarify

that speaking or even loud noises are permitted, but

that neither should rise to a volume that will prohibit the

speaker from delivering their message.

◊ Maintain reasonable distance between protestors and

counterprotestors. Each vice president acknowledged

that the divisive speaker or organization generated

protests and counterprotests on their campus. In an

effort to minimize the threat of conflict or violence,

the vice presidents sought to establish and maintain a

reasonable distance between the groups. They talked

about having the groups on opposite sides of a street, or

across from one another in a popular campus courtyard.

4. MANAGE COSTS ASSOCIATED WITH CONTROVERSIAL

SPEAKERS OR EVENTS

Citing the six-ﬁgure security costs associated with

controversial speakers reported in national news, several

vice presidents offered insights about the importance of

managing such costs. As seen in recent national news

coverage, for example, security costs for the University

of California, Berkeley, ran six ﬁgures each for events

featuring Ben Shapiro, Milo Yiannopoulous, and Ann

Coulter (Strickland, 2017; Watanabe, 2017). All interviewees

afﬁrmed that their campuses did not have the resources

for annual security costs in the million-dollar range just to

cover divisive speakers. However, they acknowledged that

covering security was necessary from a risk management

standpoint—even though the campus had not invited the

speaker or organization. One vice president noted, “We could

not let hate speech bankrupt our university, but we had

to make sure our students were safe.” Another said, “Our

campus had limited resources to manage [the speaker],

so we had to think differently about how we managed the

event.” Having prepared their campuses for offensive and

incendiary speakers on their campuses, the vice presidents

acknowledged that managing security expenses helped

reduce the overall cost of the event. They offered several

strategies that may help other campuses maintain security

at reasonable costs.

◊ Build police support for campus-based protests

and demonstrations into the agreement for police

cooperation and mutual aid with local law enforcement.

Several vice presidents spoke about the importance

of their mutual aid agreement to manage security

costs. They built provisions in their agreement with

local law enforcement that enabled each police force

to call on the other for the provision of additional

officers for large gatherings, demonstrations, or other

needs as negotiated during the formation or renewal

of the agreement. One vice president expressed

caution that perhaps the frequent use of the mutual

aid agreement to manage large campus gatherings or

demonstration may prompt local law enforcement to

renegotiate the terms of the agreement. On further

reflection, however, the vice president stated that it

was unlikely that enough inflammatory speakers would

target their campus to pose a threat to the long-term

stability of their mutual aid agreement with local law

enforcement, urging other campuses to adopt similar

provisions as a cost-saving strategy.

◊ Train current staff to perform nonsecurity roles during

events and large gatherings. During large gatherings or

demonstrations, a campus requires many personnel to

manage crowds and intervene when behavior appears

suspicious or out of the ordinary. Student affairs staff

and other non–law enforcement personnel are neither

trained in security nor credentialed to provide law

enforcement functions. However, such employees

can be helpful eyes and ears for campus and local

law enforcement to intervene prior to or in a moment

of violence or other suspicious activity. Staff can be

trained to watch for suspicious behavior and notify law

enforcement of such activity. They can also help ensure

the orderly management of participants entering into and

leaving the meeting space of the controversial speaker.

Asking current staff in FLSA exempt and non-exempt

roles to assist with crowd management during

controversial speakers or demonstrations can help

reduce event costs. There may be flexibility to ask those

staff who provide support for the event to exchange

their service for shortened regular work hours later

the same week. It is important to note that FLSA (Fair

Labor Standards Act) requires that employers measure

compensable time on a workweek basis for non-exempt

employees (United States Department of Labor, 2008).

◊ Assess security costs for groups or speakers. Assessing

security costs for outside groups or speakers is a practice

embraced by many colleges and universities. However,

at least one lawsuit has challenged this practice, raising

questions about whether the courts may affirm, revise, or

deny acceptable practice for assessing such costs.

NASPA Policy and Practice Series (Issue 3)

At the University of Cincinnati, for instance, an individual

who is not a representative of the institution filed

a suit for $2 million in damages. The court ordered

the university to reduce the assessed security cost

of $10,833 for the speaker’s planned engagement

on campus (Padgett v. Pinto, 2018; Winn, 2018). The

university responded that, like all other nonsponsored

groups or individuals, the speaker is required to pay costs

for their use of campus facilities, which include security

fees, and that these costs represent “a mere fraction of

the costs” (Winn, 2018, para. 5) the university anticipated

incurring for the event. In April 2018, however, Spencer’s

representative dropped the suit without reaching a

settlement out of court (Cammarata & Biek, 2018). Any

future court action on campus requirements or latitudes

to assess costs remains unclear at the time of this writing.

5. REMEMBER THAT EDUCATION IS OUR MISSION—

AND STRENGTH

Free speech is fundamental to higher education’s teaching

and learning mission. Upholding campus free speech

promotes inquiry, critical thinking and analysis, and dialogue.

For public colleges and universities, the freedoms of speech

and expression are fundamental rights protected by the First

Amendment, and many private-sector institutions embrace

values and principles of free speech in their campus

policies and practices. In planning for or responding to

controversial speech, vice presidents for student affairs are

often faced with the responsibility to afﬁrm their campus’s

commitment to diversity and inclusion while upholding

free speech rights and principles. There is no universal

solution to ensure individuals will not feel excluded by

divisive speech, nor is there a guarantee that such speech—

including hate speech—will be free from campus borders.

By embracing education, college and university leaders can

advance the institution’s mission and values by offering

programs—before, during, or after an incendiary speaker or

demonstration—that speak to the institution’s commitment

to deep learning, inclusion, and care. In addition, leaders

may consider offering programs that use such events as an

opportunity to educate their campus communities about

broader legal principles and responsibilities. Such strategies

to achieve these objectives include the following:

◊ Provide open forums on free speech in higher

education. Prior to hosting a high-profile, contentious

speaker, one large public research university facilitated

open forums to discuss the principles of free speech

and how they apply to the public campus. The campus

embraced this practice following significant concern

shared by students, faculty, and staff that the individual

was permitted to speak. The open forums featured

faculty whose expertise on the First Amendment was

met with an opportunity for members of the campus

community to share their concerns and engage in

a productive, empathic dialogue while providing

an educational opportunity regarding the legal

requirements of the campus.

◊ Hold panel discussions on social issues. In response

to the controversial speech events on their campuses,

vice presidents also recognized the opportunity

to encourage productive discussion about social

justice issues. Students, faculty, and staff organized

panel discussions to cultivate reflection and provide

direction to attendees who sought an alternative to the

views expressed by the speaker.

◊ Offer First Amendment training for students, faculty,

and staff. Before hosting a divisive speaker, one public

university provided students, faculty, and staff with

training on the requirements of the First Amendment

on their campus. Training facilitators reviewed with

attendees time, place, and manner restrictions

articulated by the U.S. Supreme Court and how these

applied to campus facilities, and the contours and

latitudes of types of speech that cannot be restricted at

the institution.

◊ Welcome diverse perspectives, emphasize critical

thinking, and teach civil discourse through curricular

and cocurricular learning. The ability to think critically is

fundamental to higher learning. Critical thinking requires

students to wrestle with difficult, and sometimes

uncomfortable or controversial, views that may represent

ideas or values vastly different from their own. It’s

imperative to emphasize the fundamentals of critical

thinking so students are prepared to engage diverse

views in a productive, constructive, and meaningful

manner. Educating students to think and listen carefully,

and generate conclusions only after a careful review of

multiple sources of evidence, enables them to navigate

a vibrant world comprising myriad perspectives, endless

access to information, and daily narratives of hostile and

divisive discourse. Higher education’s learning mission is

essential to promote a safe and vibrant society.

NASPA Policy and Practice Series (Issue 3)

CONCLUSION

Higher education may be a target for groups seeking to

diminish the important work we do to educate an increasingly

diverse society for lives of purpose and opportunity, but our

work will remain unchanged. Of course, the controversy

stirred at some colleges and universities by hateful groups

or speakers has once again raised deep questions about the

latitude of colleges and universities—particularly those in

public settings—to restrict or limit the campus presence of

incendiary views on campus. The First Amendment serves as

an important guidepost for the responsibilities of colleges and

universities. But we should leverage education as our strength

to strip the foolish, empty ideologies of disunity, bigotry, and

intolerance of their merit. This brief offered strategies and

practices for minding First Amendment responsibilities and

leveraging institutional mission and values to support safe and

inclusive campus environments

NASPA Policy and Practice Series (Issue 3)