Student affairs practitioners might well be wary of what
occurred at a California community college several years ago
that allowed an on-campus display featuring photographs of
newly-aborted fetuses sponsored by a local right-to-life group.
Demonstrators appeared, participants turned hostile, law
enforcement was summoned, and the college was sued.
Ultimately, whether an institution promotes expressive
activity by individuals or groups from the external community is a matter of choice for college officials; they largely
determine who may set foot on a campus and for what reason.
Even a public institution may, if it chooses, enact policies that
limit expression without offending the First Amendment.
In Hosty v. Carter, the U.S. Court of Appeals for the Seventh
Circuit reiterated that a public college or university gener-
ally can decide for itself the extent to which campus expres-
sion might be subject to regulation: “Let us not forget that
academic freedom includes the authority of the university to
manage an academic community . . . free from interference by
other units of government, including the courts.”
Still, those courts resolutely embrace the academy’s tradi-
tion of promoting discourse on campus outside the confines of
the classroom. In Widmar v. Vincent (and elsewhere), the U.S.
Supreme Court has celebrated “the intellectual give and take
of campus debate” and acknowledged, with a nod to Justice
Holmes, that the “college classroom with its surrounding
environs is peculiarly ‘the marketplace of ideas.’”
At public institutions, the First Amendment will preclude
a school from censoring speech only if college and university
officials decide to treat the campus as a venue for open expres-
sion. Once a public institution affirmatively chooses to fashion
an idea marketplace within the campus surroundings, it likely
creates what American courts have labeled a “limited public
forum” where speech enjoys First Amendment protection. In
such a forum, the school generally may not censor that speech
based on its content.
Restricting access to the school premises by outside advocates might yield a more sedate academic setting, but it can
also undermine the educational mission of the college or university. Moreover, as Harvard Law Professor Cass R. Sunstein
has argued, fostering a marketplace of ideas may prevent
the phenomenon of group polarization where, by refusing
to listen to contrary views, like-minded people are prone to
adopt more extreme positions than they otherwise would be
inclined to take.
In Going to Extremes (Oxford University Press, 2009),
Sunstein contends that exposure to an array of opinions ensures
that “those with blinders . . . occasionally see elsewhere. What
they see may change their minds, even their lives.”
Educators are in the business of changing lives, often by
facilitating their students’ discovery of radically new ideas and
thoughts, including the ones we hate. LE
Peter Kushibab is the former general counsel for the Maricopa County
Community College District in Arizona. Among other things, he now
teaches classes in education law and public administration at Northern
Arizona University.
