Know Your Free Speech Rights on Campus
You have free speech rights on a college campus that are protected at many levels – state, federal, and by UO policy.
What is free speech?
The First Amendment of the US Constitution contains numerous rights – freedom of speech, freedom of peaceful assembly, freedom of religion, freedom of the press, and freedom to petition the government. In addition to the free speech protections in the federal constitution, the Article 1, Section 8 of the Oregon Constitution states that “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
In 1969, the US Supreme Court heard a landmark case called Tinker v. Des Moines Independent Community School District. In this case, high school students planned on wearing black armbands to their high school in protest of the Vietnam war. Their high school created a policy that would require the students to remove their black armbands, or face suspension. The parents of these students sued the school district, stating that this policy violated the student’s First Amendment rights to free speech. The Supreme Court ultimately found that the black armbands constituted “pure speech” and that the school could not punish students for wearing the armbands. A famous statement from this case is that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”.
What rights do universities have in regulating free speech?
Even though the federal and Oregon constitutions protect the right to free speech, public universities, including the University of Oregon, can regulate the freedom of speech in certain ways, but cannot regulate it in other ways.
To understand these rights and limitations, it’s important to know what counts as “speech”. Speech are words, symbols, and expressive conduct intended to convey a message and “reasonably likely” to be perceived as such. For example, chanting during a protest is considered to be speech.
It’s also important to know that when exercising any right to regulate free speech, public universities must do so in a way that is content-neutral — public universities cannot regulate free speech based on the content of the speech’s message.
One of the ways public universities can regulate speech is through time, place, and manner restrictions. When imposing these restrictions, public universities must offer other alternatives for communicating a message. For instance, public universities can impose noise limits on free speech by barring the use of amplified devices or bullhorns during a protest. This is a reasonable restriction on the manner of expressing free speech because there is a reasonable alternative for communicating the same message – by communicating that message without using microphones or bullhorns. Additionally, public universities can also bar early morning and late-night protests because the reasonable alternative for expressing the same message is to do so during the day. Another common restriction on free speech is a public university policy that might restrict the size and/or placement of signs around campus. This is another reasonable restriction on free speech because the restriction allows for other ways to communicate the message. Universities may also choose to allow these types of speech to occur, even if it is not protected speech.
Regardless of the time, place, or manner restrictions applied by a public university, these restrictions must be applied equally to all and must not limit speech based on its message – the regulations must be content-neutral.
What speech is not protected by the federal and Oregon constitutions?
There are certain categories of speech that do not qualify for the protections of free speech. These “unprotected speech” categories can be addressed by public universities based solely on the speech’s content. These categories include:
- Direct or Specific True Threats;
- Speech that incites lawlessness/violence;
- Hate crimes (not hate speech);
- Harassment based on a protected class; and
- When actions interfere with university operations.
It’s important to note that hate crimes and hate speech are two different categories. Hate speech is protected speech, while a hate crime is not. For instance, in a case in Iowa last year, the Iowa Supreme Court found that when the defendant left a note on a LGBTQ+ pride flag attached to a person’s home that stated “burn the gay flag” constituted a hate crime. The speech on the note was not criminalized – that speech alone is protected even though it can be categorized as hate speech. However, as soon as the defendant trespassed on someone else’s property to leave this note, the defendant committed a hate crime. Had the defendant yelled “burn the gay flag” from the public street in front of the person’s home, this would not count as a hate crime because no unlawful action accompanied that statement.
How does this apply to the University of Oregon?
UO does exercise its right to limit free speech and assembly in a few different ways. First, UO provides a scheduling tool for reserving UO spaces for events that does not limit the use of campus facilities based on the content of the message. Second, UO provides multiple policies for expressing free speech through posters and/or signs. Third, UO also limits the time and place in which someone may exercise their right to free speech or assembly. The Student Conduct Code prohibits “Disruptive Behavior,” which is defined as:
Engaging in behavior that could reasonably be foreseen to cause, or that causes, the disruption of, obstruction of, or interference with:
- the process of instruction, research, service, administration, administering the Student Conduct Code, or any other University Sponsored Activities,
- an environment conducive to learning, or
- freedom of movement on University Premises, either pedestrian or vehicular.
UO is permitted to restrict speech that qualifies as Disruptive Behavior because this speech is not restricted based on the content, and because this charge still allows for a reasonable alternative for communicating a message.
This Disruptive Behavior charge may also be applied to any encampments that might exist at UO. If an encampment qualifies as Disruptive Behavior, students participating in that encampment may be charged under the Student Conduct Code. This charge would be a reasonable restriction on free speech because the Disruptive Behavior charge is content-neutral and allows for other reasonable alternatives for communicating a message.
What you should know as a University of Oregon student:
It’s important to know how your right to freedom of speech and assembly is restricted at UO. You should know that participating in an encampment or protest may, under some circumstances, result in a Student Conduct charge, regardless of the message. Students should decide whether to participate in demonstrations that may not be protected under the right to free speech and balance that risk with the message’s importance. It is not the position of the Student Advocacy Program to discourage students from participating in unprotected speech or assembly events, but instead to support students who get in trouble at the UO, regardless of the reason. Whether an incident is protected by free speech or not, we are here to support you and help you navigate your next steps.
If you believe that you are the recipient of any unprotected speech – including direct or specific threats, hate crimes, speech that incites lawlessness/violence, or harassment based on a protected class – you can report this directly to UO’s Office of Investigations and Civil Rights Compliance by visiting their website at https://investigations.uoregon.edu/reporting.
Additional Resources:
Know Your Rights in Student Conduct
You have specific rights within the Student Conduct process that you are always guaranteed. These are required by the Conduct Code and are an important way that University of Oregon ensures you are treated fairly.
If you receive a Notice of Allegation email from Student Conduct, you have the right to receive and review ALL evidence against you prior to your Informational Meeting. If Student Conduct doesn’t send you everything in your Notice of Allegation email, you have the right to email them and request a copy of the entire evidence file.
You have the right to have a Support Person of your choice to provide support, advice, and guidance throughout the conduct process. Support Persons can attend meetings, be copied on formal case communications, and ask reasonable clarifying questions during and prior to the Administrative Conference.
During your Informational Meeting, Student Conduct will ask you if you’d like to immediately proceed to an Administrative Conference. You have the right to say no and have this hearing AFTER your Informational Meeting. Student Conduct cannot force you to answer questions in the Informational Meeting unless you consent to proceed to an Administrative Conference. If you’re not sure if you should immediately proceed to an Administrative Conference, it’s in your best interest to ask for the conference to be scheduled for a later date so you may consult support resources, such as the Student Advocacy Program.
You have the right to remain silent during an Administrative Conference. Student Conduct cannot draw an adverse inference from that silence. You also have the right to answer some questions and not others, but Student Conduct may consider how that affects your credibility.
In many cases, if you receive a Decision Letter that finds you in violation of a Student Conduct Code Violation, you have the right to appeal that decision. You have 10 business days to file a written appeal which goes before the University Appeals Board, made up of students, faculty, and staff from across campus.
Anything you say to Student Conduct can be subpoenaed by law enforcement or prosecuting attorneys for criminal prosecution. If you are facing criminal charges in addition to a Student Conduct Code Violation, it is highly recommended that you consult with the SAP Attorney on how your on-campus statements could affect your off-campus case.
Know Your Rights in The Dorms
Just like the Student Conduct Code, University Housing has community standards and contract expectations that residents must follow. If you live on-campus, you’re expected to comply with these community standards, conduct policies, and the Student Conduct Code. You can view the full list of community expectations here.
University Housing enforces their community standards and contract expectations through a similar framework as Student Conduct. You are entitled to a Support Person to assist you in the same manner, as well as access to an appeal process if you’re found in violation of a charged offense. Both the SAP Attorney and Peer Advocates provide support on how to navigate this process.
Housing Community standards also require residents to provide University identification when asked to do so by a university official. So, if an RA asks for your UO ID, you must provide this information.
However, Article 1 Section 9 of the Oregon Constitution and the Fourth Amendment of the US Constitution prevent RAs or other university officials from entering and searching your residence hall room without probable cause.
Therefore, if a RA knocks on your door to give you a warning for a noise violation and asks to see your ID, you can exit your room and provide your identification without letting the RA into your room.
But, if an RA smells a cannabis odor or sees alcohol in your room, that is enough probable cause for the RA to enter your room.
If you’re unsure about whether or not an RA is allowed to enter your room, you can ask to speak to the on-call Community Director prior to letting the RA into your room.
Know Your Rights with Financial Aid
Satisfactory Academic Progress
Your ability to qualify for financial aid each academic year is determined by your Satisfactory Academic Progress. If Financial Aid notifies you that you are not meeting this progress, you can appeal this decision. This appeal is completed through your Financial Aid Menu in DuckWeb, under the Eligibility and Requirements tab. This process also requires you to meet with your academic advisor. The Peer Advocates can help you navigate this process.
Revising your Financial Aid Award
You can request a review of your financial aid package to increase funding for student expenses. Financial Aid includes the following examples on their website of educational costs that can be added to your aid package:
- Actual tuition and fees if they exceed the amounts we have projected
- Extraordinary costs for books and supplies necessary for classes in your major field of study
- Extra costs associated with participation in University of Oregon programs away from campus
- Childcare expenses incurred when you and your spouse are at work or in class
- Medical insurance or medical costs not covered by insurance
- Extra costs related to a disability
- Liability insurance and repairs for an automobile may be considered if your car is required for education-related travel or for commuting from outside the Eugene-Springfield area.
- Actual resident hall costs if they exceed the amounts we have projected
- Reasonable actual off-campus housing/rent costs, if they exceed the amounts we have projected
- One-time increase for the purchase of a computer
Know Your Rights in Residency Petitions
The University provides different criteria for how to become a resident for tuition purposes. If you weren’t granted residency and think you qualify, you can submit a Residency Information Affidavit. There are multiple appeal options if you are denied residency after submitting the affidavit.
It is important to remember that the Residency Information Affidavit is a binding legal document. This means you are legally required to report truthful information as if you are under oath. If you knowingly provide false information on the Residency Information Affidavit, you face the penalty of perjury – a Class 3 Felony in Oregon that includes up to 5 years in prison, a fine up to $250,000, or both. The SAP Attorney can provide varying types of support during the residency process, including reviewing the information included in the affidavit and providing legal arguments during the appeal stages.