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Running head: THE FIRST AMENDMENT ON CAMPUS 1

The First Amendment on Campus

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Wright State University

McKenna Koewler
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College campuses across the United States struggle to find the perfect balance between

upholding the First Amendment rights while maintaining a conducive learning environment. The

First Amendment of the U.S. Constitution states, “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people to peacefully assemble, and to petition the

Government for a redress of grievances” (1789). The First Amendment applies to all public

institutions; private institutions, however, have exceptions. As higher education evolves, the First

Amendment continues to impact college campuses in different ways. Throughout this paper, I

will address three topics covered in The First Amendment on Campus: (1) the evolution of

higher education through the first amendment, (2) the differences between public and private

institutions as it pertains to the first amendment, and (3) considerations student affairs

professionals should bear in mind.

Court cases such as Brandenburg v. Ohio, Cohen v. California, Healy v. James, and

similar cases have set precedents for higher education across the nation regarding the First

Amendment. The 1950s brought integration to college campuses, and the Civil War movement

was soon to follow. This movement ignited a controversial speaker on colleges campuses that

challenged the First Amendment. The disruptions caused were sometimes harmful, however,

these acts have impacted the world in many positive ways. For example, Brandenburg v. Ohio

set a precedent that “incitement,” verse speech, is not a protected First Amendment Right;

therefore, any action that incites violence is not a protected right. In Cohen v. California, Cohen,

wearing a vulgar shirt referring to the draft, was arrested. However, in this case, the court found

in favor of Cohen. Therefore, his clothing of choice was protected by the First Amendment.

Healy v. James addressed the right to assemble when a student organization was denied
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recognition on campus. Each case mentioned above addresses one aspect of the First

Amendment, and while these cases set precedents, the challenge to find an appropriate balance

still exists.

For higher education professionals to find this balance, they first need to understand the

amendment. As complex as the First Amendment is, higher education administrators and staff

should be able to recognize student rights. One challenge I encountered while reading The First

Amendment on Campus is how to determine the right action to take as a professional. A few

court cases seemed to be self-explanatory, while other cases tested moral and ethical principles.

For example, Boy Scouts of America v Dale found in favor of the Boy Scouts’ to dismiss a

scoutmaster based solely on their sexuality. In today’s society, this goes against many

institutional diversity statements, ethics, and some mission statements.

When considering Boy Scouts of America v Dale in the context of a private institution the

dismissal very well could be a possible outcome. Private institutions do not have the same

restrictions as public institutions because of a public institution relationship with the government.

An agreement between the institution governs students at private institutions. However, some

states have fought for private institution students to be protected by the legislature. “Private

institutions that have a substantial amount of federal funding for their institution through student

financial aid and/or federal programs or grant dollars may be more vulnerable to challenge if

they have a substantial enough “nexus” with the government to be subject to governmental

restrictions (Bird, Mackin, & Schuster, 2006, p. 42).” Private institutions who receive substantial

federal funding are between the black and white lines of the First Amendment.

As I explained above, the First Amendment is occasionally self-explanatory or black and

white; however, instances such as the private institutions receiving substantial federal funding
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create blurred lines making it difficult to find the balance. The First Amendment on Campus

alluded to several best practices for public higher education institutions to implement throughout

the book. Keep in mind, higher educations are to act within their role and not in the position of

the law, and there are a few practices student affairs professionals can implement to begin

creating a balance.

Typically, higher educational institutions have public forums when a controversial topic

is discussed. Conducting public forums is one method to address the balance. A forum is defined

as “a public space, esp. one devoted to assembly or debate” (Bird, Mackin, & Schuster, 2006, p.

32). There are five types of forums including the public forum (constitutional law), public form

(noun), traditional public forum, designated public forum, and limited public forum. Public

forms take place in a common or designated location that has traditionally served in a similar

capacity. For example, during the faculty strike at Wright State University, a public forum was

held in the Student Union Apollo room. This room is a very commonly used space for large

events such as a public forum. The topic for the public forum was designated by the Student

Government Association making it a limited public forum. “Thus, it can be designated as

limited to particular groups or particular topics, as long as those restrictions are not based upon

the content of the message to be delivered (Bird, Mackin, & Schuster, 2006, p. 34).”

During public forums, students express their points of view, which can sometimes be

controversial. Another complication higher education face is how to define expressions. There

are multiple tests recognized by in chapter four such as balance test, time place and manner, and

the threshold analysis. The threshold analysis involves a three-step assessment: (1) identifying

First Amendment issues, (2) exceptions to the First Amendment, and (3) forum analysis.
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When identifying the First Amendment issues, student affairs practitioners are to

determine the underlying problems. The book suggests analyzing a series of questions to ensure

the entire event is investigated. Consider religion, expression, local new involvement, campus

demonstration, recognition of a student group or even a request for a meeting room. By

answering these questions, it is easier to determine if student rights were guaranteed. If the First

Amendment right was not upheld, we move to step two, Exceptions to the First Amendment.

There are many specific exceptions to this amendment; however, the most common exceptions

include libel, slander, disruption of academics, violence, invasion of privacy, or sexual

harassment. The topics just listed are not covered by the First Amendment, and therefore the

institution may take appropriate action. The third and final step in the threshold analysis is to

analyze the forum. Institutions should consider the situation and understand the First

Amendment rights. By following this three-step threshold, analysis institutions can increase their

knowledge of campus events and topics.

All in all, the First Amendment is a fundamental right that needs to be understood by all

higher education employees, not just staff members. After reading The First Amendment on

Campus, I was appalled by several scenarios in which their peers ignored students First

Amendment right. The resident assistant who made a floor bible study mandatory for students

who were exhibiting disruptive behaviors was shocking. One consideration when reading this

scenario is the type of institution: public or private. While the First Amendment protects citizens

right to practice their religions, it does not preserve the enforcement of religion onto another

student, which is what the resident assistant was doing in that scenario.

No matter the action the institution takes when addressing the First Amendment, they will

be criticized. Many years ago, the First Amendment caused uproars on college campuses, and
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this will continue to occur for the remainder of the institutions' existence. The controversial

topics discussed on college campuses are protected, and some community member will not

understand why. As offensive the discussion may be, it does not mean it is unprotected. The

most important thing we, as student affairs professionals can do is educate.

Faculty may not view student affairs professionals as educators; however, we hold great

power to impact our student’s lives in many different ways. A strategy we can implement to

begin educating students is to meet with them when a speaker is coming to campus. Student

affairs professionals can provide a broad overview of the First Amendment and the potential

emotions the students may feel. It is essential to follow up with the students during and after the

event. The most important aspect of education is its continuation and reflection. Providing a safe

space for students to reflect on their experience can provide a deeper understanding of their

rights as a citizen of the collegiate community and community in which they live. Not only are

students’ lifelong learners, but so are we as student affairs professionals.


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References

Bird, L. E., Mackin, M. B., Schuster, S. K., & National Association of Student Personnel
Administrators, I. (2006). The First Amendment on Campus: A Handbook for College
and University Administrators. NASPA - Student Affairs Administrators in Higher
Education.

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