Free Speech is a “political right to unfettered expression granted to all citizens by the First Amendment of the United States Constitution” (Butters 81). Directly, free speech in the academic world derives legal power from the fact that many schools are publicly supported and therefore are considered arms of the government. Indirectly, free speech on the campus derives from the putative reasoning that lay behind the creation of the First Amendment: “that the prohibition of ideas is dangerous because it runs the risk that truth will thereby be squelched (generally due to the self-interest of the squelchers); and that the truth will emerge only through dialogue and debate, whereby error will be revealed through communal reasoning” (Butters 83). The primary goal of educational institutions has traditionally been the discovery and dissemination of the truth. Therefore, the notion that expressive acts in academics, as teaching and researching, should be protected has grown rapidly throughout the latter part of this century. However, while most Americans conventionally believe in the concept of an open, restriction-free atmosphere at the public university historically, university speech codes continually regulate some expression.
On many United States campuses and universities, certain conduct is sometimes regulated. The “time, place and manner,” restriction sets up certain speech codes that govern, restrict and regulate all communication forms on campus. These codes regulate faculty presentations, campus newspapers, student fees for student activities and even the students’ behavior. In order to discover the constitutionality of these speech codes on college campuses and universities, each of these regulated campus speech forms must be explored separately.

Faculty Expression
Another important issue concerning university speech codes that must be raised is how the expression of faculty members of university institutions should be controlled. In all universities, the university speech codes extend to the faculty members’ behavior. Like students at a public university, faculty members are required to preserve and protect the adopted freedom of expression policy adopted at that institution.
  Public universities have consistently practiced the freedom of expression policy of open debate, however in recent years institutions of higher learning have proven particularly prone to sacrificing free speech on the altar of political correctness. In many lawsuits faculty members’ expressions have been questioned, reprimanded, or even suppressed. Through practicing academic freedom, college and university faculty members often have had contentions with institutional speech codes that may involve First Amendment violations of freedom of expression. Academic freedom derives from the putative reasoning that lay behind the creation of the First Amendment: “that the prohibition of ideas is dangerous because it runs the risk that truth will thereby be squelched; and that truth will emerge only through dialogue and debate” (Butters 83). Therefore, historically special protection is usually given to the faculty members in their search for truth. In an article in the book, Morality, Responsibility, and the University, Judith Decew imparts that, “a major justification for granting tenure to college and university professors is to ensure their rights freely to voice or write unpopular opinions” (32).
The concept of academic freedom, which usually refers to “intellectual protection for an individual faculty member for study, research, discussion, expression, association, publication and teaching,” first appeared in the lone dissent of Justice Douglas in the 1952 case Adler v. Board of Education (342 U.S. 485 (1952)). In that case a teacher in New York was wrongfully reprimanded and fired for his teaching of Communism in the classroom. Douglas wrote his dissent to the Court opinion that affirmed the teacher’s chastisement by arguing that, “The Constitution guarantees freedom of thought and expression to everyone in our society. All are entitled to it; and none needs it more than the teacher” ((342 U.S. 485 (1952) Find Law. http://laws.findlaw.com/US/342/485.html).
  By 1957 in Sweezy v. New Hampshire (354 U.S. 234 (1957)), academic expression was unanimously recognized by the Supreme Court. In that case, Sweezy was convicted for contempt when he refused to answer questions from authorities about the content of a lecture he delivered and his relationship with the Progressive Party.
Current judicial standards governing faculty expression are mostly derived from two landmark Supreme Court decisions-Pickering v. Board of Education (391 U.S. 563 (1968)) and Tinker v. Des Moines Independent Community School District (393 U.S. 503 (1969)). The Tinker case involved student expression, and the Pickering case was concerned with a teacher’s out of school expression; however the broad rules and vague terminology contained in both Supreme Court decisions have enabled lower courts to further interpret standards which tend to limit faculty expression (Rosenblum 3).
I n Pickering, the United States Supreme Court found that Pickering’s speech that concerned matters of public concern were substantially correct and not detrimental to the efficient operation of the school. Therefore, Pickering’s speech could not be used as a ground for dismissal. Justice Thurgood Marshall delivered the majority opinion stating that “teachers cannot be compelled to relinquish their First Amendment rights they would otherwise enjoy as ordinary citizens” (391 U.S. 563 (1968) Find Law. http://laws.findlaw.com/US/391/563.html). Among other important points decided by the Pickering case, another main component dictates that “expression which cannot be shown nor presumed to have impeded the teacher’s proper performance of his daily duties in the classroom is protected” (391 U.S. 563 (1968) Find Law. http://laws.findlaw.com/US/391/563.html).
Upon deciding the fate of faculty members’ free expression, the Supreme Court also looked at the possible danger that may erupt from such expression of faculty members. In Dennis v. United States (168 U.S. 241 (1897)) the Supreme Court adopted the “probable danger test,” which states that: “the court must ask whether the gravity of evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid danger” (168 U.S. 241 (1897) Find Law. http://laws.findlaw.com/US/168/241.html). In The Tinker case the District Court judge relied on Dennis in order to justify the school board’s decision to suspend the children. Justice Fortas delivered the opinion of the Supreme Court in 1969 stating that, “the arm-band display involved direct, primary rights akin to ‘pure speech’” (393 U.S. 503 (1969) Find Law. http://laws.findlaw.com/US/393/503.html).
The Tinker decision gives some indication that displays of individual expression on school premises should be weighed the same as displayed expression in the public arena. In one of the most often used quotes of the case, the Supreme Court incorporated its academic expression rationale to the teacher, declaring:
“First Amendment rights, applied in light of special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to the freedom of speech or expression at the schoolhouse gate” (393 U.S. 503 (1969) Find Law. http://laws.findlaw.com/US/393/503.html).
Both Supreme Court rulings fundamentally affected lower court’s decisions when resolving issues involving faculty expression. Both cases set up a test with which to determine constitutional restriction of faculty expression. That test states that the “displayed expression must incur substantial and interference with the efficient operation of schools beyond a mere tendency to anger or to arouse fear of disruption” (393 U.S. 503 (1969) Find Law. http://laws.findlaw.com/US/393/503.html). Furthermore, the justification for restriction of free expression within public educational institutions lies with the state.
Despite two favorable Supreme Court decisions that show protection of free expression in the school system, faculty expression in colleges and universities remained susceptible to possible restrictions. Generally speaking, a faculty member can find support for his classroom expression in the courts if his classroom expression serves valid educational objectives. Furthermore, in the university and college setting, a professor is considered an expert on the content of his subject and would therefore be in a position to decide what serves as a valid educational purpose in his classroom. On the other hand, the expression of faculty members displayed out of the classroom may be unprotected. “Late in 1996, a federal appeals court ordered a rehearing in a bizarre case of two professors at the University of Minnesota-Duluth” (O’Neil 2129). The professors had posted, in a departmental collage, photos of themselves each holding a weapon, “one a pistol, the other a sword. Such mementos, they claimed, reflected their shared interest in military history. The campus chancellor saw the display a bit differently, and ordered the two pictures removed-because, he argued, they might exacerbate a campus climate of fear that followed anonymous death threats against a female administrator and another woman colleague” (O’Neil 2130). Despite the apparent display of the professors’ expression of their interest in military history in the collage, the Appeals Court  (Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997) (en banc)) ruled that the two pictures of the professors shown with the weapons could be legally removed. The adverse appeals decision has again been formally appealed.
Freedom of expression of faculty members of public universities and colleges, or academic expression, has perpetually been protected. Although political correctness has become more apparent in recent years on college campuses, as in other First Amendment instances, the college faculty member’s individual freedom of expression interest outweighs community interest. “Speech codes are contrary to the very mission of our public institutions. By teaching students that it is acceptable to censor disagreeable speech, speech codes warp the young minds that will someday be running this state and nation”(Curry http://www.paweekly.com/PAW/morgue/spectrum/1995_Apr_5.GUET05.html)
Student Papers
An issue that must be raised is to what extent can campus speech codes be used to restrict the content of student publications such as newspapers.  Since a public college/university administration is considered a government entity it is subject to constitutional restrictions.  These restrictions include the protection of speech afforded by the First Amendment.
The standard by which a college may restrict material printed has evolved through many cases.  A proliferation of controversial student activity in the 1960s led to the first of the important cases regarding freedom of the campus press.  In Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (1967), a student was expelled for resisting a censorship attempt by the university by printing in the editorials space the word "Censored."
Gary Clinton Dickey was editor of the Troy State College newspaper, The Tropolitan, and wanted to publish a letter supporting the University of Alabama President, Dr. Frank Rose, in his dispute with some Alabama state legislators over his failing to censor a student publication.  Dickey was informed by the paper's faculty advisor and the University President, Ralph Adams, that the editorial couldn't be printed because it violated a Troy State College rule that no editorials in the school paper could be critical of the Governor or the state Legislature.  In protest Dickey published "Censored" instead of an article suggested by the faculty advisor in the editorial space.  Dickey was suspended for "willful and deliberate insubordination."
The Troy State rule, a.k.a. "Adams Rule," is clearly an infringement of the students' freedom of expression. The Alabama Federal District court agreed.  In the majority opinion, Chief Justice Johnson reaffirmed that students retain constitutional rights on campus:  "A state cannot force a college student to forfeit his constitutionally protected right of freedom of expression as a condition to his attending a state-supported institution."
Prior cases held that to restrict student expression regulations and rules must be reasonable.  The court in Dickey found that a rule meant to maintaining order and discipline in schools necessary for an effective learning environment is reasonable.  However, the court in Dickey ruled that the "Adams Rule" was unreasonable and that Mr. Dickey and his editorial was not a reasonable threat to the discipline and order of Troy State College.  They found the "Adams Rule" to be an unconstitutional restriction of the students' First Amendment right to free expression.
The decision in Dickey was rather clear cut in that it involved traditional political speech that courts have had no problem in protecting.  The issue that wasn't tackled by the Alabama District Court was the constitutionality of the college administration to examination of the republished material.  This amounts to prior restraint of protected speech.  The constitutionality of a policy of prior approval of campus newspaper content was addressed in the Massachusetts U.S. District Court in Antonelli v. Hammond, 308 F.Supp. 1329 (1970).
John Antonelli, was the editor in chief of The Cycle, the campus newspaper at Fitchburg State College.  The Cycle is supported by student activity fees through the college.  The printer noticed one article in an issue of The Cycle contained offensive language and alerted the college president, James Hammond.  Hammond, citing powers from authority to allocate funds, refused to print the edition of the paper and required that subsequent editions be reviewed by a faculty advisory board prior to publication.  The primary function of this advisory board was to "pass on the acceptability of material intended to be published in The Cycle and to prevent the printing of articles which the administration feels are not fit for the campus newspaper."  Since there were no guidelines as to what is "acceptable" the decision was rather arbitrary.
The court found that preventing offensive language is not a legitimate interest to justify the limitation of constitutionally protected speech.  In the majority opinion, District Judge Garrity wrote that "obscenity in a campus newspaper is not the type of occurrence apt to be significantly disruptive of an orderly and disciplined educational process."
On the issue of school funding of newspapers allowing for prior restraint by officials the court found no such right.  District Judge Garrity wrote: "We are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is a part of the university structure and is financed with funds controlled by the administration.  The state is not necessarily the unrestrained master of what it creates and fosters."  This doctrine takes away a powerful justification educational administrations have used in restricting speech, especially in student newspapers.  State institutions do not have the same editorial control as commercial publishers.  Therefore controlling the purse strings does not give the administration the right to control the content of the student publication.
The question now becomes when is prior restraint by college/university officials constitutional.  This issue is raised in Joyner v. Whiting, 477 F.2d 456 (1973), a case heard before the United States Court of Appeals, Fourth Circuit.  Johnnie Edward Joyner was the editor of the Campus Echo, the official student newspaper of North Carolina Central University.  The first issue under Joyner printed a series of articles questioning the increasing number of white students at the historically black college.  The racially divisive tone of the articles caused the President of NCCU, Albert N. Whiting, to deny further funding of the Campus Echo.
In the majority decision Circuit Judge Butzner applied the standard from Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971) that school authorities may "exercise prior restraint upon publications distributed on school premises during school hours in those special circumstances where they can reasonably forecast substantial disruption of or material interference with school activities on account of" the publication.  In this case, however, the court found that even though the articles were offensive to many, there was no evidence that any white faculty or students were harassed.  Therefore, the court held that the withdrawal of funds on the grounds that the president disagreed with Joyner's editorial policy is an unconstitutional abridgment of the students' First Amendment rights.
But what constitutes "special circumstances" by which a college or university administration may restrict what is printed in a student newspaper that would otherwise be constitutionally protected?   The "special circumstances doctrine was applied by the U.S. Court of Appeals in the Fifth Circuit in Bazaar v. Fortune, 476 F.3d 570 (1973).  In that case the university refused to allow the publication and distribution of the campus literary magazine because two of the stories contained objectionable (but not obscene) language.
The court held that there were no "special circumstances" permitting the state to limit expression which would otherwise be protected.  They found that the nature and manner that the words were used in the stories were unlikely to lead to any significant disruption on the campus.  In the majority opinion, Circuit Judge Morgan wrote that the court rejects the University's contention that "special circumstances" include "matters of taste and the right of the University to prevent activities which it would feel would lead to criticism of it from outside sources."
The U.S. Supreme court examined this issue that same year in Papish v. University of Missouri Curators, 410 U.S. 667 (1973).  They held that "the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of 'conventions of decency.'"  They noted that the University action in Papish amounted to an unconstitutional content based restriction rather than a reasonable time, place, and manner restriction.  The court's use of this language implies that its reasoning is at least partially based on the public forum doctrine.
This "special circumstances" doctrine, which parallels the public forum doctrine, has been applied several times since the 1970s to protect student expression in campus publications.  However, a pending case could swing the pendulum back toward a more restrictive interpretation of the law.  In Kincaid v. Gibson, the administration is seeking to apply the stricter standard that the U.S. Supreme court handed down in Hazelwood School District v. Kuhlmeier, 108 S. Ct. 562 (1988) to the college student media.
Hazelwood was a case concerning high school students' expression in a school newspaper.  The Hazelwood decision allows high school administrators to censor articles in school-sponsored student publications simply by declaring the material "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane...," or "inconsistent with the shared values of a civilized social order."  This ruling lets school officials may exercise "editorial control over the style and content of student speech in school sponsored expressive activities."
In the case of Kincaid v. Gibson, officials at Kentucky State University removed the newspaper advisor and confiscated editions of the yearbook.  The District court, applying the Hazelwood standard, found that the college press was subject to the same restrictions as the high school press.  Up to this point courts, including the U.S. Supreme Court, have refused to apply Hazelwood to the college media and have stayed with the less restrictive "special circumstances" reasoning.
The upcoming decisions concerning Kincaid are very important to freedom of expression in the college student media when one considers the effect of the Hazelwood decision on high school student media.  The Student Press Law Center, a student media advocacy organization, has received 163 percent more calls from high school students and their advisors seeking legal help in responding to censorship.1  From these calls, the SPLC has learned that the real world effect of Hazelwood has been that administrators have interpreted the decision to mean that they have an unlimited license to censor anything based upon the vague "legitimate pedagogical concerns" justification.2
This makes it clear that the application of the Hazelwood decision to the college press would have a significant negative impact on freedom of expression in the campus media.  Under the Hazelwood doctrine it would be very easy for an administration to create and enforce campus speech codes concerning the campus press.  Speech that is considered offensive to protected groups printed in the campus newspaper would definitely fall under Hazelwood's category of speech "inconsistent with the shared values of a civilized social order."  Therefore extending Hazelwood to the college press would be a great victory for those looking to implement lasting speech codes on campus.
1Kincaid v. Gibson: Brief Amici Curiae of Student Press Law Center, et. al.

http://www.splc.org/resources/college/kincaidbrief.html

2Ibid.

Mandatory Student Fees
Historically, mandatory student activity fees have played a major role in American universities. Officials claim that student activities fees are vital to supplement education and that mandatory fees are necessary to support these activities.  By the late 1970’s fees were used to support a variety of student groups and activities including student government, publications, concerts, sports and clubs. Proponents of fees claim that much of the speech currently thriving on campuses would no linger be able to survive without this fee support system.  The power of universities to collect these fees isn’t disputed ; rather, the main concern is just what activities the fees may be used to fund. Challenges to the distribution of mandatory fees have arisen since the late 1970’s and have fallen into two distinct categories. The first being those brought by students who felt that they were excluded from funding because of  the university disagreed with their message and the second being individual who felt that they were being unconstitutionally compelled to speak since their fees were used to support speech with which they disagree. (Wiggin, 2010)
Mandatory student fees give rise to three distinct and often conflicting First Amendment interests which will be examined in this section of the paper. First, fee systems create limited public fora where student groups have the right not to be excluded  solely based on the message that they represent. Simultaneously, students also have a right against compelled funding of political or ideological speech with which they disagree. Finally, public universities have the right to create a fee-funded forum that embraces diverse viewpoints to add to the educational experience of their students. (Wiggin, 2011)  Historically, when deciding the issue of the constitutionality of mandatory fees, the courts initially placed the highest importance on public forum rights of students not to be excluded based on their message, and less attention was paid to the argument for compelled speech rights. More recently, the courts have embraced these compelled speech rights and have offered solutions which violate public forum rights. (Cote, 827)   The courts have recognized the universities education interests in created fees- funded fora to promote diverse viewpoints. However, great tension arises between the competing interests of the public forum and compelled speech doctrines. Public forum analysis requires that speakers are guaranteed equal access to speak but under the compelled speech doctrine, the equal access requirement compounds harm to the dissenters rights by requiring them to fund viewpoints with which they may disagree.(Wiggin 2010) The evolution of the courts decisions show an awareness of each of these doctrines but also highlight the difficulty the courts’ have in balancing the competing interests of each.
Turning first to the issue of the university as a public forum, the Court established in Widmar v Vincent  454 U.S. 263 (1981) that a university is indeed a limited public forum. The Court implied that by allowing the use of its facilities for a student organizational meeting, the university had created a limited public forum and couldn’t prohibit a group from meeting based on religious affiliation. They reasoned that “ the campus of a public university, at least for its students, possesses many of the characteristics of a public forum” (Widmar at 267)  and  that strict scrutiny must be applied to any content based restriction on access to this public forum.  Based on this analysis, the university couldn’t show that the exclusion was necessary to serve a compelling government interest. While it is a well established fact that people don’t have the right to access all government property for expressive purposes, the Supreme Court has ruled that once the government holds its property out for public use, it can’t exclude them based on the message they wish to convey.
In Perry Educational Association v Perry Local Educational Association 460 US 37,45 (1983), the Court held that content or viewpoint based restrictions on access to a public forum must withstand strict scrutiny. Twelve years after the Widmar  ruling, in the Lamb’s Chapel v Center Moriches Union Free School District 508 U.S. 384 (1993), the Court found a similar regulation to be characterized as viewpoint discrimination and also impermissible within a public forum. Therefore, the Court has found that any restriction that is either viewpoint or content based must withstand strict scrutiny before being restricted in the public forum. The government may only undertake content or viewpoint based restrictions where it can show that there is a narrowly tailored compelling government interest. In Healy v James 408 U.S. 169 (1972), the Court recognized that “state colleges and universities aren’t enclaves immune form the First Amendment” and held that denying recognition to a student group based on their views was a violation of the First Amendment rights of association. However, the Court also recognized that the First Amendment must be applied in a university environment, and it allowed universities to establish “reasonable school rules governing conduct”. (Healy at  172)  Thus, the university was established as a public forum, though one that was limited by reasonable regulations. Overall, the Court’s application of  the public forum doctrine has served to protect the less popular and more controversial student groups on campuses.
Inevitably, this pubic forum doctrine, which allows for a wide variety of speech has caused individuals to claim that their rights to compelled speech are being violated. These students feel that their right not to speak on issues with which they don’t agree is being restricted because they are forced to pay mandatory fees which fund the groups in question. While the First Amendment doesn’t explicitly protect rights of association, the Supreme Court has reasoned in West Virginia Board of Education v. Barnette 319 U.S. 624, 642 (1943) that the right to associate or not associate is implicit in the First Amendment. Compelled association cases deal with a person’s right not to be forcibly associated with a message with which he or she disagrees. Simply being forced to facilitate another’s speech isn’t enough to trigger these compelled association rights as the Court has refused to find a violation unless the person can show actual association with the objectionable message. An example of this is the case of Pruneyard Shopping Center v Robins 447 U.S. 74, 88 (1980) where the Court rejected an argument that the rights to compelled association were violated by a California statute requiring the owners to allow demonstrators in their mall. The Court pointed out that the owners could have easily distanced themselves from these messages and that since the mall was opened to the public, it was unlikely that anyone would associate the speech specially with the owners. In Abood v Detroit Board of Education 431 U.S. 209 (1977), the Court extended this rationale to a situation where union dues were used to fund ideological or political speech. Even though this situation technically included no more association than the demonstrators in Pruneyard, the Supreme Court held that public employees may be required to pay union dues but not support the political activities of the unions not germane to their goal of collective bargaining. The Court held that mandatory fees could only be used for purposes germane to the accepted government interests of the union. This has been dubbed the “germaneness test” (Abood at 234) . The Court in Abood seemed to prohibit any forced monetary support to anther’s speech but in later cases, the Court narrowed this doctrine of protection as extending only where a person’s compelled funding was used to fund “political or ideological” activities. (Abood at 240)
Students challenging the mandatory fees have embraced the ruling in the Abood case and argued that their cases present similar issues because funding certain disagreeable groups isn’t germane to the university’ s educational goals.( Wiggin, 2017) The first suits that were brought to the courts were in Nebraska in 1973 and were decided in favor of the mandatory funding. The courts emphasized that the broad nature of speech funded by the fees prevented the students from being compelled to support a particular view. By 1993, three state courts and four federal courts had also upheld the use of fees by adopting the public forum analysis and rejecting the compelled association allegations (Wiggin 2019).  At this time, the courts balanced the students First Amendment rights against the university’s traditional need to supplement classroom education within an atmosphere of learning, debate and controversy and found in the university’ s favor as long as the fees weren’t used to advance a particular viewpoint.
Up until 1993, students had brought suits challenging the use of mandatory student fees to fund specific student groups. However, in 1993, the California Supreme Court heard a case challenging the entire system of mandatory student fees in Smith v. Regents of the University of California 884 P.2d 500 (Cal 1993). In this case, student plaintiffs objected to the use of mandatory fees to fund certain “political” or “ideological” groups, lobbying efforts, and student government political activities. The court held that the fee system did unconstitutionally fund political and ideological speech and, therefore, rejected the idea that the mandatory fees created a public forum. Also, the court held that the fee system caused unconstitutional compelled association like the Abood union cases. The court ruled that Berkeley set a new fee structure where students wouldn’t be required to fund groups whose political components outweighed their educational value. The ruling meant that, while the university could continue to fund student groups through fees, it needed to offer dissenting students a chance to opt out of the fees used for political or ideological views to which they opposed.
However, in 1995 the case of Rosenberger v. Rector and Visitors of the University of Virginia 115 S.Ct. 2510,  the Supreme Court required UVA to provide equal access to activities fees to all student organizations regardless of their message. The case stemmed from the university’s denial of student activities fees to any activity that “ manifests a particular belief in or about a deity”. (Rosenberger at 2515)  The Court spoke in broad terms about the importance of debate in public universities and seemed to favor protecting particularity controversial and unpopular fee funded speech at universities. (Wiggin 2024) This discussion indicated that student activity fees should be treated as a public forum by reasoning that fees were a forum “more in the metaphysical than spatial or geographical sense” (Rosenberger at 2517). This decision contradicted the reasoning of Smith. Also, this decision relied on a broad definition of viewpoint discrimination by holding that banning religious speech was equivalent to banning a religious viewpoint on subjects that were otherwise permissible within the public forum. In her concurring opinion,  Justice O’Connor noted “the possibility that student fees are susceptible to a Free Speech Clause challenge by an objecting student that believes she should not be compelled to pay for speech with which she disagrees” ( Rosenberger at 2527). With this concurrence, O’Connor hinted that she would rule in favor of dissenting speakers.
 In April of 1996, the first challenge to Rosenberger arose in the case of Southworth v Grebe (1996 U.S. Dist LEXIS 20980), when three University of Wisconsin students challenged the use of mandatory fees to fund 18 groups that they alleged used the funds to pursue political and ideological goals, thus violating their association rights under the First Amendment. These students claimed that they were compelled to “subsidize  groups that contradict their views on abortion, homosexuality, socialism, etc...”. The court held that the mandatory fees used to fund groups that engage in primarily political rather than educational activities cause unconstitutional compelled association.  The court looked towards the California Supreme Court’s analysis in the balancing of interests in the Smith case where it held that a public university can support groups as long as the funds are going to groups germane to the universities educational mission. At some point, the educational benefits became incidental to the group’s primary function of advancing it s political and ideological interests. The court found that this can’t justify the burden on the dissenting student’s constitutional rights. This lower court did acknowledge the Supreme Court’s decision in Rosenberger but rejected its public forum analysis. The lower court reasoned that the groups being challenged wanted the fees “clearly to fund political or ideological activity, not to provide a forum for the exchange of free ideas” ( Southworth at 32). The lower court also cited O’Connor’s concurrence that mandatory student fees could be subject to a challenge. In disagreeing with the Rosenberger reasoning, neither the Smith or Southworth courts provided a good definition of what speech or groups are primarily political and which are primarily educational. The lower court decisions left this to the university to decide and this ambiguity has caused much criticism of these decisions.
The Southworth court based its decision on the reasoning of the Abood court and the germanmness test. However, the court failed to raise the issue distinction that student fees are used to fund a limited public forum while the union dues were in a private forum. This public forum issue had been clearly established in Rosenberger. Any decision in a compelled funding case has implications for the rights of all those who use the forum. In general, the purpose of a public forum is to promote uninhibited debate, and one can’t easily pass a restriction that would still foster debate without unconstitutionally discriminating against a viewpoint (Wiggin 2032).  As the Court reasoned in Rosenberger “in determining whether the state is acting to preserve the limits of the forum it has created so the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise in the forum’s limitations”(Rosenberger at 2517).  Based on this, the state may choose not to offer “universal access” and could then exclude certain groups on the basis (content) of their viewpoint. However, even after this Rosenberger ruling, the Southworth court didn’t acknowledge that its ruling could have impermissible viewpoint based impact on the public forum.
The final distinction that the courts had to make in deciding the constitutionality of mandatory fees was the distinction between content and viewpoint restrictions. This distinction can differ based on how the courts interpret the language of the Supreme Court’s previous rulings. Under Rosenberger, content-based restrictions that preserve the nature of the forum, in this case educational, are permissible though no viewpoint restrictions are. The Supreme Court has generally found that content-neural restrictions are permitted while content-based restrictions are disallowed.(Perry Educ Ass’n at 1144) The Court has also found that viewpoint based restrictions are a sub-category of content based restrictions because they censor one side of a controversy while another is allowed to be spoken. The problem arises when the courts have to apply these restrictions to a limited public forum where content based restrictions are allowed but viewpoint based restrictions have been held impermissible. Differing interpretations have occurred based on how broadly the court defines the relevant conversation that can’t be discriminated against. The Supreme Court offered an initial distinction in the case of R.A.V. v The City of St. Paul 505 U.S. 377, 391 (1992) where the Court struck down an ordinance that proscribed fighting words based on “race. color, creed, religion or gender” (R.A.V. at 391) , because it found that this ordinance censored only one side of the conversation. Thus the ordinance was seen as viewpoint discrimination. Similarly in Rosenberger, the Court viewed the ban on religious groups as excluding one side of a single conversation-about religion. They broadly defined viewpoint discrimination by stating that “ the prohibited perspective, not the general subject matter resulted in the refusal of funds” (Rosenberger at 2517-2518). Therefore, Southworth court’s exclusion of political speech can be seen as viewpoint discrimination because it allows “educational” but not “political or ideological” speech on the same subject. Their remedy prohibits political viewpoints on subjects “otherwise within the forums limits”.
Both the Smith and Southworth courts struggled to define the idea of germaneness within the context of student fees. Both felt that this was the way to balance compelled speech and public forum rights but couldn’t effectively apply the Abood test. (Cote 849) They acknowledged that universities are allowed a great deal of leeway in their educational decisions but tried to strike a balance between academic freedom and student’s constitutional rights. The Abood court prohibited compelled funding except where it was germane to the state’s vital policy interests, which in this context is education. However, the remedy of allowing educational funding while disallowing ideological or political funding isn’t easily drawn considering the Court in Widmar v. Vincent gave universities deference to determine what is educational. Some institutions might consider certain types of political speech of important educational value and thus allow them in the public forum. It is therefore inappropriate to deny the university the ability to create a public forum unless there are no other solutions to the problem of compelled speech ( Wiggin 2037).
As can be seen from such conflicting opinions, there are no absolutes when fundamental rights conflict. Several scholars have argued that the courts need to develop a solution to the fees challenges that more effectively balances the rights of all involved and clearly indicates what groups may be permissibly funded through mandatory fees. One solution is to ban activities and not groups, and only those activities which were political speech activities not germane to the university’s educational mission. This would seem to be any political or ideological activities that are directed outside of the university such as lobbying, or campaigning for a certain candidate. This would ensure that all are allowed  to participate in the fees funded forum while protecting dissenters from being compelled to pay for speech that serves no educational purpose. This activities based exclusion would survive the strict scrutiny of a public forum because it doesn’t exclude any perspectives otherwise permissible in the educational forum. The exclusion is a permissible content based exclusion to define the nature of the forum. This exclusion also protects compelled speech interests because Abood requires that funding be mandatory only if it is germane to  the “vital policy interest” (Abood at 235), which in this case is the university’s educational interest. Preserving uncensored discussion and debate, even when it’s ideological and political, within the university’s forum is narrowly tailored to meet this interest because there is no better way for the university to ensure that students are exposed to a campus wide forum of debate and discussion.
After all of the debate between Abood, Smith, Southworth and Rosenberger, the  central consensus is that universities need only to ensure that mandatory student fees not be used for nongermane political and ideological activities. As of yet, no singular court decision has been introduced that effectively balances the issues of the public forum, compelled association and academic freedom of the public university.
Students
The role of a university as a business institution is to provide an environment conducive to a higher-level education that will be both personally and economically beneficial to its consumer -- the student. The role of the university as a social institution is to provide an environment conducive to the free exchange of ideas, and facilitate learning by remaining open to and promoting the sharing of the varied opinions held by its students. Lastly, the role of the university is perceived by the general population as providing an environment conducive to mutual respect among its community members, serving as a haven for diversity. Thus, when addressing the student, the primary purpose of the university is dialectical in nature.  However, conflict can arise over the predominantly complimentary nature of this purpose when one role begins to conflict with the other.  Most recently, this has been revealed in the debate over the effect of hate speech codes on the university student.
The main issue in this debate is that in sharing their ideas, some students may espouse hateful or intimidating words that could impede other student’s abilities to learn. Thus, there is a claim that the university environment promoting the free exchange of ideas, may make the climate required for institutionalized educational purposes impossible to achieve. Furthermore, community of mutual respect is endangered. Thus, as a preventative measure, the university system has begun to enact speech codes. However, without repeating the aforementioned arguments, when such codes are adopted by government-financed state colleges the issue moves beyond one of simply primary purpose and into the First Amendment protection of freedom of speech. Therefore, the constitutional debate over the free exchange of ideas v. the right to equal education arises.
As Judge Holmes espoused in Abrahms v United States (250 U.S. 616, 630 (1919)), the right to the freedom of exchange of ideas is a pivotal part of American society,  guaranteed by the First Amendment. Thus, since the college campus is often viewed as a microcosim of society as a whole, the application of speech codes appears unconstitutional and destructive. However, the 1954 Supreme Court  ruling in Brown v. the Topeka Board of Education, guarantees every citizen to the constitutional rights of equal education. Therefore, if a student claims the speech occurring on her campus to be the source of a hostile environment, it could be interpreted to be interfering with her ability to learn, thereby making equal education access impossible and the endorsement of a speech code constitutional and corrective.
When directly addressing the issue of the constitutionality of hate speech codes in regards to the college student, it is best to divide the applicability of the argument. Due to the unusual living and working environment of universities, the question must be addressed within the context of legal geographic terms - the private residence, the public forum, the workplace and public property.  On a college campus these refer to the students dorm room, the central part of a student’s campus, the student’s classroom, and all other areas of campus.
When addressing private residence and free speech, the laws appear quite definitive. Legally, by the standards of City of Ladue v. Gilleo (512 U.S. 43 (1994)),  the occupant of a dwelling is the only one who has significant free speech rights within the dwelling. As addressed in R.A.V. v. City of St. Paul (505 U.S. 377, 382 (1992)), the First Amendment does not protect the use of nonverbal symbols, or symbolic speech, when they “encroach upon, or desecrate” private property. Thus, such symbolic speech as racial epitaphs or religious symbols ascribed to a resident’s door by someone besides the occupant, is not protected speech. However, on college campuses often a private residence is shared between two or more people - varying the legal regulations to addressing the double-occupation dorm room to the hundred-something residence hall.     While the Constitution protects the rights of an occupant to express her own views in her own home through such means as political meetings, posting political signs, or displaying religious symbols (City of Ladue), the Constitution also protects the rights of an individual not to have his privacy encroached upon by the speech of outsiders (R.A.V.). A shared occupancy can result in the forced expression of one’s ideas upon another, and while multi-occupant situations do not constitute roommates as outsiders, the freedoms of expression and association guaranteed by the First Amendment are in question.
It remains unclear whether hate speech codes are intended to apply to the private residence. While one would hope that residential issues would be handled in a simpler means, through such methods as room transfer or intervention,  the very implementation of such a policy is controversial. Speech codes appear to be in direct violation of opposing Constitutional rights of all occupants of a private residence.  However, no case exists directly addressing these issues.
On the other hand, the issue of a university’s public forum in respect to a students rights is less of a conflict situation.  Traditionally, in-line with the university role of free exchange of ideas, the college campus has been a forum for a number of controversial ideas.  The traditional purpose an institution is the deciding factor in its use as a public forum, as the court opinion in International Society for Krishna Consciousness, Inc.  v. Lee (112 S. Ct. 2711 (1992)) discussed. In this case, the court was discussing the legality of solicitation and distribution in an airport. Thus, the majority of the general area of campuses constitute public areas. (By “general area”, one means such properties as open malls and courtyards. Other areas of campus will be discussed in the final section).
However, as decided in Forsyth County v. Nationalist Movement (505 U.S. 123 (1992)), government officials can restrict speech in a public forum for means of keeping the peace by defining the time, place and manner of speech. On a public university campus administration constitutes government officials, thus some restrictions on speech are constitutional. However, in general, when a student leaves her residence and ventures to class through the main part of campus she passes through a public forum. Thus, she subjects herself to the expression of others; and, concurrently, she has the right to express herself as well.
The issue of hate speech codes is addressed when a student passerby finds the views being expressed to be creating a hostile or offensive campus environment.  The student can claim the speaker to be depriving her of the environment that allows her to receive an equal educational opportunity (Brown).  Thus, the university hate speech code could be implemented. However, doing so could be in violation of the First Amendment; for, as decided in Cohen v. California (403 U.S. 15 (1971)), speech in a public forum is protected and cannot be regulated by the government for content. In this case, the Court reasoned that the government cannot forbid particular words without also “running a substantial risk of suppressing ideas” (Alystyne at 156). Thus, legally, the choice left to the offended student is to either avert her eyes or take a less direct route to class.
Thus far, hate speech codes have not appeared to directly impede upon the dialectical purpose of the university in serving the student. However, in the following sections the effect of such codes on student speech, in regards to the First Amendment, increase in complication.  The classroom, like the university, is unique in its purpose. Unlike private residencies and public forums, they serve a multiple purpose similar to that of the university as a whole.  By federal duty, the classroom must provide an equal education opportunity; and, to achieve its purpose, it must remain conducive to the free exchange of ideas in a mutually- respectful atmosphere.
In a state school, constitutional principles of free speech and academic freedom permit students to state any political or social view they desire on a class topic, and the state cannot prohibit it simply because of the content of the view (Calleros, Charles, 1996.).  Thus, what may be defined by many as hostile speech by many, is legally protected when it occurs regarding a course subject in a classroom. A government-funded school may not discipline a student because of the content of her views.
When offensive remarks are made, other students are free to respond, as the term “free exchange of ideas” directly implies. Still, they cannot bring up the “offensive” student on violation of hate speech codes. Thus, what may be regarded as inflammatory speech (but not fighting words) is protected by the First Amendment, as long as it pertains to the context of a course. However, if such remarks are made not regarding the course subject, (in or out of a classroom), a student may be in violation of hate speech codes.
The final area of discussion regarding student speech is those areas that do not constitute residence, public forum or classroom - the rest of campus. This is the area that is both the most undefined, and the one in which the hate speech codes appear to be most applicable.  This would address speech that occurs such public property areas as hallways and dining halls, bathrooms and student lounges. The speech often consists of general conversations, student program flyers and unintentional graffiti (doodles).  It is also the area with the most litigation, although only in district court, due to the applicability of the codes.
Two case  examples in which the decisions of the court pertain to this area of speech, Doe v. University of Michigan (721 F. Supp. E.D. Mich (1989)) and UWM Post, Inc. v. Board of Regents (774 F. Supp. E.D. Wis.(1991)). However, in each of these cases the court found that the policies were overbroad, vague, and regulated more than fighting words. Thus, while hate speech codes appear unconstitutional in respect to student speech in the areas of private residence, public forums and the classroom, there still remains no decision as to the constitutionality of the application of hate speech codes when an engagement occurs on the public property of college campuses.
Conclusion
"Recent cases have made clear that at public institutions constitutional gurantees against abridging freedom of speech are upheld stringently" (Decew 41). However, the Supreme Court seems to use different sets of criteria to determine the constitutionality of different speech code regulated forms of expression on public campuses and universities.
Freedom of expression of faculty members of public universities and colleges, or academic expression, has perpetually been protected. Although political correctness has become more apparent in recent years on college campuses, as in other First Amendment instances, the college faculty member’s individual freedom of expression interest outweighs community interest. On the other hand, the most recent cases involving college newspapers may use the application of the Hazelwood decision. That decision would have a significant negative impact on freedom of expression in the campus media.  Under the Hazelwood doctrine it would be very easy for an administration to create and enforce campus speech codes concerning the campus press.  Speech that is considered offensive to protected groups printed in the campus newspaper would definitely fall under Hazelwood's category of speech "inconsistent with the shared values of a civilized social order,"  making the speech code regulating newspapers unconstitutional.
Historically, when deciding the issue of the constitutionality of mandatory fees, the courts initially placed the highest importance on public forum rights of students not to be excluded based on their message, and less attention was paid to the argument for compelled speech rights. More recently, the courts have embraced these compelled speech rights and have offered solutions which violate public forum rights.  The courts have recognized the universities’ education interests in creating fees- funded fora to promote diverse viewpoints. As of yet, no singular court decision has been introduced that effectively balances the issues of the public forum, compelled association and academic freedom of the public university.
Lastly, while hate speech codes appear unconstitutional in respect to student speech in the areas of private residence, public forums and the classroom, there still remains no decision as to the constitutionality of the application of hate speech codes when an engagement occurs on the public property of college campuses and universities.
 
 
 
 
 
 
 
 
 
 

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Janet S. Hazelrigs, Erin Weiss, Kristen Ciesla, and Brian Marron
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