University of Cincinnati Law Review University of Cincinnati Law Review
Volume 92 Issue 1 Article 2
October 2023
Education, the First Amendment, and the Constitution Education, the First Amendment, and the Constitution
Erwin Chemerinsky
University of California, Berkeley, School of Law
Follow this and additional works at: https://scholarship.law.uc.edu/uclr
Part of the Constitutional Law Commons, Education Law Commons, First Amendment Commons,
Fourteenth Amendment Commons, Religion Law Commons, and the Supreme Court of the United States
Commons
Recommended Citation Recommended Citation
Erwin Chemerinsky,
Education, the First Amendment, and the Constitution
, 92 U. Cin. L. Rev. 12 (2023)
Available at: https://scholarship.law.uc.edu/uclr/vol92/iss1/2
This Lead Article is brought to you for free and open access by University of Cincinnati College of Law Scholarship
and Publications. It has been accepted for inclusion in University of Cincinnati Law Review by an authorized editor
of University of Cincinnati College of Law Scholarship and Publications. For more information, please contact
12
EDUCATION, THE FIRST AMENDMENT, AND THE
CONSTITUTION
Erwin Chemerinsky*
I. INTRODUCTION
It is a tremendous honor to be the inaugural lecturer in the Professor
Ronna Greff Schneider Constitutional Issues in Education Law Speaker
Series. As the dean said, Professor Schneider was a distinguished member
of this faculty teaching legions of students for forty-two years. She is also
one of the most important scholars in the United States regarding
education, the First Amendment, and the Constitution.
The topic that I was given to speak on today is therefore so appropriate:
the First Amendment in education. It is a very complicated relationship.
Free speech is essential to effective education, but free speech also can
undermine effective education. Take a simple example that is frequently
in the news.
University of Pennsylvania law professor Amy Wax is very
controversial, and she has made statements that have gained national
attention. She has said publicly that there are too many Asians in the
United States.
1
Professor Wax has said that she has rarely seen a Black
student in the top half of the class at the University of Pennsylvania Carey
Law School.
2
She also believes that women law students are not as
capable as men law students.
3
Initially, the University of Pennsylvania
removed her from teaching first-year classes, but since then, it has
initiated a lawsuit against her that may result in the revoking of her
tenure.
4
However, she is currently arguing that her actions are protected
as free speech.
5
Though her speech likely undermines effective education for many of
the students at the University of Pennsylvania Carey Law School,
Professor Wax claims her speech is safeguarded by academic freedom.
6
* Dean Erwin Chemerinsky is the Dean and Jesse H. Choper Distinguished Professor of Law at the
University of California, Berkeley, School of Law. This Article is adapted from Dean Chemerinsky’s
speech, “The First Amendment in Education,” the inaugural lecture in the Professor Ronna Greff
Schneider Constitutional Issues in Education Law Speaker Series at the University of Cincinnati College
of Law on February 17, 2023.
1
. Karen Sloan, Facing Sanctions, Penn Law Prof Amy Wax Files Grievance Against Dean,
REUTERS (Jan. 26, 2023, 5:02 PM), https://www.reuters.com/legal/legalindustry/facing-sanctions-penn-
law-prof-amy-wax-files-grievance-against-dean-2023-01-26/.
2
. Id.
3
. Id.
4
. Id.
5
. Id.
6
. Id.
1
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 13
How do we go about balancing this tension between the desire to
safeguard expression, which is essential to education, and the fact that
sometimes this same expression can undermine effective education? That
is what I want to address, and I want to look at three aspects of this issue.
First, I want to look at the First Amendment and the content of
education. Second, I want to examine the First Amendment and student
speech. And finally, I want to talk about the First Amendment and the
ability to determine and control the environment within an educational
institution. Two caveats are important at the outset. As all the lawyers and
law students here know, the First Amendment itself applies only to
government institutions, such as public colleges and universities.
7
Private
institutions do not have to comply with the First Amendment.
8
I find that
this is often a surprise to non-lawyers.
For those who are not lawyers here and to whom this might be a
surprise, I have a couple of easy illustrations. Before I went to teach at the
University of California, I was a professor at Duke Law School in North
Carolina, which is a private university. While I was there, if I had given a
speech criticizing the president of the university—I guess I should say if
I again had given a speech criticizing the president of the university—and
if he had fired me, I could not have sued him or the university for violating
my free speech rights. It is a private university. The Constitution and the
First Amendment do not apply. But now, I work at the University of
California. If I were to give a speech criticizing its president, and was
fired, I could sue the university for violating my free speech rights
because the First Amendment’s rights do apply.
My favorite illustration here comes from a true story of a conversation
in a grocery store with my oldest two children thirty years ago when they
were nine and six. At the time, Coca-Cola was giving away free baseball
cards, and three cards were pictured on the outside of the package. As we
went up and down the aisles of the grocery store, my two kids were
fighting (as they often did at that age) about who was going to get the
extra baseball card. Finally, I said, “Be quiet. I don’t want to hear anything
else about baseball cards until we leave the grocery store.”
My then nine-year-old turned to me and said, “You can’t tell me to be
quiet. I’ve got freedom of speech.”
I was ready for him. I said, “Freedom of speech means the government
can’t tell you to be quiet. I’m not the government, so I can.”
Without missing a beat, he replied and said, “Well, you’re like the
government to me, so you cannot tell me to be quiet.” That’s when I first
7
. E.g., Healy v. James, 408 U.S. 169, 180 (1972).
8
. Cf. id. (noting only that students and teachers retain their constitutional rights to freedom of
speech at state universities and colleges).
2
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
14 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
knew that someday he was going to be a lawyer. Now he is a federal
prosecutor in Los Angeles.
My other caveat is that when we talk about the First Amendment in
education, the answer to a question will often depend on the level of
education we are speaking about. It is not homogeneous when we are
talking about elementaries, high schools, colleges, or universities. There
are certainly common issues, and the results will sometimes be the same,
but sometimes they will not be, and it is easy to see why.
Claims of academic freedom are going to get more weight when we
deal with the college and university level than when we deal with lower
grades. Also, the state’s interest in the restriction of speech is greater
when dealing with younger students.
9
II. THE FIRST AMENDMENT AND EDUCATION CONTENT
With these caveats in mind, my first point looks at the First
Amendment relative to controlling education. I am sure that all of us in
this room would agree that freedom of speech is essential for effective
education. And this transcends what I spoke about a moment ago in terms
of only public universities being bound by the First Amendment. Even for
private universities, there must be a commitment to academic freedom.
Usually, a faculty or student handbook includes protection for speech and
ends up being an enforceable contractual obligation.
10
Some states
provide protection for speech in the private university context. California
has a law called the Leonard Law that states private schools cannot punish
speech if a public school violates the First Amendment by punishing the
same speech.
11
All of this reflects the belief that teachers should be able to express
themselves in their classrooms and in their scholarship, and students
should be able to express themselves as well. The Supreme Court most
eloquently expressed this in Keyishian v. Board of Regents.
12
Harry
Keyishian was a professor at the State University of New York at
Buffalo.
13
He refused to take an oath promising that he was not and never
had been a member of the Communist Party.
14
As a consequence of not
9
. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988).
10
. See, e.g., Greene v. Howard Univ., 412 F.2d 1128, 1132 (D.C. Cir. 1969).
11
. CAL. EDUC. CODE § 94367 (Deering 2023).
12
. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (“Our [n]ation is deeply committed to
safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers
concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate
laws that cast a pall of orthodoxy over the classroom.”).
13
. Id. at 591.
14
. Id. at 592.
3
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 15
taking the oath, his contract was not renewed.
15
The Supreme Court ruled
in his favor.
16
In what is probably its strongest declaration in favor of academic
freedom, the Court said that academic freedom is of transcendent value
to everyone, and is not merely a teacher’s concern.
17
Such freedom is
therefore a special concern to the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom.
18
And
certainly, there are instances in the Supreme Court, and in the lower
courts, where they have repeated this notion of the importance of
protecting freedom of speech in the classroom.
19
And yet, as is true of all speech, this principle is not absolute. Imagine
that someone was assigned to teach contracts in a law school, and the
professor objected and said as a protest, “I’m just going to talk about
sports in class this semester; class time will be spent discussing baseball
and college basketball and the like.” And imagine that that law school
went on to discipline the professor. The law school would surely win.
There’s obviously the need for a university, or a high school, or any
school to dictate its curriculum.
How then do we balance that interest—the need for a school to dictate
its curriculum—with the free speech interests of the faculty who are
teaching that curriculum? The Supreme Court and the lower courts have
not given us clear guidance on how and where to draw the line.
The closest Supreme Court case about this is Board of Education v.
Pico.
20
And it actually was not directly about curriculum, but was about
the ability of a school to remove books from the school library.
21
But the
analysis of the Court was much like that which would be applied to
curriculum. The Supreme Court said that the First Amendment did apply
and held that, when done to deny students access to ideas, the removal of
books from school libraries denies students their First Amendment
rights.
22
But on the other hand, it also said that a school has discretion to
determine the books in its library so long as it does not engage in
viewpoint discrimination.
23
On the surface, there is appeal to this. We certainly object if a public
school library says, “We’re not going to have any books written by
15
. Id.
16
. Id. at 593.
17
. Id. at 603.
18
. Id.
19
. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
20
. 457 U.S. 853, 858 (1982).
21
. Id. at 857.
22
. Id. at 870-71.
23
. Id. at 870-72.
4
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
16 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
liberals,” or “We’re not going to have books written by conservatives.”
But you do not have to look very hard to see that the Court’s approach
does not work well. What if the school library says, “We’re not going to
buy any books by white supremacists”? Of course, it can do that. No
library can buy every book, and in choosing which books to buy or not
buy, they can say that some views are so beyond the pale and not worth
their money.
One of the lower court cases that I find particularly useful in this regard
is Griswold v. Driscoll, which came out of the First Circuit about a dozen
years ago and expressed a strong view that the government controls the
curriculum in the classroom.
24
The Commonwealth of Massachusetts
adopted curriculum guides that said each grade level, through appropriate
material, would teach students about the Holocaust, the Armenian
genocide, and the Irish famine.
25
A Turkish group brought a lawsuit and
said that it believed the Armenian genocide did not happen and that the
government was impermissibly putting forward a viewpoint that violated
the First Amendment.
26
The First Circuit ruled against the Turkish group and upheld the
Massachusetts curriculum guide.
27
Justice Souter, who had retired from
the Supreme Court and was sitting by designation, wrote the opinion.
28
He said that the curriculum, including the curriculum guide, was a form
of government speech, and that when the government itself is the speaker,
what it says cannot be challenged.
29
Thus, the Free Speech Clause of the
First Amendment was not violated in the case.
30
If you follow Griswold
v. Driscoll, schools seemingly have unlimited latitude to prescribe what
is taught in the classroom.
31
The question of how far this principle extends is arising now because
a number of states have adopted laws that prohibit the teaching of critical
race theory. These laws are being challenged in court, and likely because
they are very broadly written. As an example, a Tennessee law prohibits
teaching “an individual should feel discomfort, guilt, anguish or another
form of psychological distress solely because of the individual’s race or
sex.”
32
The Tennessee law says further that it prohibits teaching “[a]n
individual, [that] by virtue of the individual’s race or sex, is inherently
24
. Griswold v. Driscoll, 616 F.3d 53, 58 (1st Cir. 2010).
25
. Id. at 54.
26
. Id. at 56.
27
. Id. at 54.
28
. Id.
29
. Id. at 58.
30
. Id.
31
. See id. at 55.
32
. TENN. CODE ANN. § 49-6-1019 (6) (2023).
5
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 17
privileged, racist, sexist, or oppressive, whether consciously or
unconsciously.”
33
Think about that language. I think if nothing else, it is
unconstitutionally vague. How can you prohibit teaching that leads to a
feeling? Does not teaching often lead to emotions? And how can a state
prohibit that?
Indeed, under the language of the Tennessee law, is it even possible to
teach about unconscious racism? Can an instructor teach about the long-
lasting devastating consequences of enslaved people in the United States?
But states that have adopted these laws say that they are permissible
efforts to control the curriculum in their states.
34
Or consider the Florida law, the Stop WOKE Act, which prohibits the
teaching or lessons that we usually term “diversity training.”
35
How are
the courts going to deal with this? How will they balance the speech rights
of teachers?
There is a real tension between the academic freedom announced in the
Keyishian case and the ability of schools to control their curriculum. I can
point to a couple of cases so far that lead in opposite directions. There is
a case that arose not far from here. The case is Meriwether v. Hartop and
it involved Nicholas Meriwether, a teacher at Shawnee State University
who refused to call a student by her chosen gender pronouns.
36
The
student was a transgender woman and Professor Meriwether refused to
address her with the feminine pronouns “she” and “her.”
37
He was
disciplined as a result, and shortly after, he filed a lawsuit.
38
The district
court dismissed his lawsuit, but the United States Court of Appeals for the
Sixth Circuit reversed.
39
The Sixth Circuit did so in an opinion by Judge
Thapar that used ringing language about the free speech rights of a teacher
in a classroom.
40
Yet I wonder, what if a professor, instead of not using chosen pronouns,
repeatedly used a racist epithet when calling on students every time a
Black student raised their hand? Or, you can pick other epithets. For
example, if every time someone who identified as a Jewish student raised
33
. Id. § 49-6-1019 (2).
34
. Ryan Quinn, Tennessee Again Targets ‘Divisive Concepts,’ INSIDE HIGHER ED (Apr. 18,
2023), https://www.insidehighered.com/news/faculty-issues/diversity-equity/2023/04/18/tennessee-
again-targets-divisive-concepts.
35
. H.R. 7, 2022 Leg., Reg. Sess. (Fla. 2022) (Second Engrossed). The legislation’s most recent
update In November of 2022, when Tallahassee U.S. District Judge Mark Walker blocked the bill from
taking effect in Florida’s public universities. Pernell v. Fla. Bd. of Governors of the State Univ. Sys., No.
4:22cv304-MW/MAF, 2022 U.S. Dist. LEXIS 208374, at *152-55 (N.D. Fla. Nov. 17, 2022).
36
. Meriwether v. Hartop, 992 F.3d 492, 499-500 (6th Cir. 2021).
37
. Id. at 499.
38
. Id. at 501.
39
. Id. at 502-03.
40
. Id.
6
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
18 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
their hand, the professor used an offensive term to call on the student. Can
the professor be disciplined for that? I am convinced that every court
would say yes. Does it not create a hostile environment? I am not sure
why the Meriwether case is any different than these examples other than
that the judges on that panel seemed less concerned about the rights of
transgender students than students discriminated against on the basis of
race.
The Meriwether case settled, and it was publicly reported that
Meriwether was given $400,000 as a result of that accord.
41
There is
another case that I would point to here. A case called Arce v. Douglas,
and I should disclose that I argued this case in the Ninth Circuit.
42
What’s
involved here is that the state of Arizona prohibited the teaching of ethnic
studies.
43
And specifically, the law was motivated by a desire to eliminate
Mexican American studies courses in Tucson, Arizona schools.
44
A
lawsuit was brought on the grounds that this violated the First
Amendment rights of teachers to instruct, and the rights of students to
receive information.
45
Additionally, there was an equal protection claim.
46
The district court dismissed the case, but the Ninth Circuit reversed.
47
The
case ultimately went to trial and the plaintiffs won. What the Ninth Circuit
said seems so important in thinking about anti-critical race theory
legislation, particularly in terms of how anti-critical race theory
legislation is a restriction of the speech of instructors and a limit on the
ability of students to receive information.
There is one other dimension with regard to the First Amendment and
education that must be recognized. In 2006, in Garcetti v. Ceballos, the
Supreme Court held there is no First Amendment protection for the
speech of government employees on the job acting within the scope of
their employment duties.
48
Richard Ceballos was a deputy district
attorney in Los Angeles County.
49
He believed that a witness in one of his
41
. Madison Hall, A University in Ohio Agreed to Pay a $400,000 Settlement to a Professor it
Disciplined for Not Using a Trans Student’s Pronouns, BUS. INSIDER (Apr. 19, 2022, 3:14 PM),
https://www.insider.com/shawnee-state-settlement-professor-who-refused-using-trans-persons-
pronouns-2022-4.
42
. Arce v. Douglas, 793 F.3d 968, 973 (9th Cir. 2015).
43
. Id.
44
. Id.
45
. Id. at 973-74.
46
. Id.
47
. Id. at 974.
48
. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
49
. Id. at 413.
7
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 19
cases, a deputy sheriff, was lying.
50
So, he wrote a memo to the file to that
effect.
51
His supervisor told him to soften that statement.
52
He did not.
53
He gave it to the defense counsel, as he thought he was constitutionally
required to do.
54
His supervisor then removed him from his position and
transferred him to a much less desirable location.
55
He said that this
violated his First Amendment rights.
56
The Ninth Circuit ruled in his
favor, but the Supreme Court, in a five-to-four decision, reversed.
57
Justice Kennedy wrote for the conservative majority.
58
The court said that
there is no First Amendment protection for the speech of government
employees on the job when they are in the scope of their duties.
59
How does this then apply to teachers, to professors in public schools?
The United States appellate courts are split on this. The United States
Court of Appeals for the Ninth Circuit has said that Garcetti v. Ceballos
does not apply to professors at the college and university level.
60
The
United States Court of Appeals for the Third Circuit has said the opposite,
that Garcetti v. Ceballos means that so long as a teacher is on the job and
within the scope of their employment duties, then there is no First
Amendment protection.
61
If the Supreme Court applies Garcetti v.
Ceballos to the university context, it would eviscerate any protection for
professors—whether or not it is called academic freedom or free speech
under the First Amendment—in the context of the classrooms.
III. THE FIRST AMENDMENT AND STUDENT SPEECH
The second topic that I want to address concerns the First Amendment
and student speech. It is interesting that when it comes to the Supreme
Court, there has virtually never been a case about student speech at the
college or university level. There have been just a handful of cases by the
Supreme Court about freedom of speech at the high school level. In fact,
there are so few that I can remind you of them and then try to draw some
conclusions from them. Usually, when these cases are discussed, it is
forgotten that the first in this series, which I think is one of the most
50
. Id. at 414.
51
. Id.
52
. Id.
53
. Id. at 442 (Souter, J., dissenting).
54
. Id.
55
. Id. at 415 (majority opinion).
56
. Id.
57
. Id. at 415-17.
58
. Id. at 413.
59
. Id. at 418.
60
. Demers v. Austin, 746 F.3d 402, 411 (9th Cir. 2014).
61
. Gorum v. Sessoms, 561 F.3d 179, 186 (3d Cir. 2009).
8
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
20 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
important Supreme Court cases ever about the First Amendment, was
West Virginia State Board of Education v. Barnette.
62
The state of West
Virginia required that students begin each day with a flag salute; if you
look at pictures of the flag salute, it was stunningly like that done in
Germany with the words, “Heil Hitler.”
63
The case came to the Supreme Court in 1943, in the midst of World
War II when patriotic fervor was at its height. Just a short time before, the
Supreme Court reached the opposite conclusion and upheld a state’s
ability to require flag salutes.
64
But the Supreme Court overruled that
decision and declared this requirement unconstitutional in Barnette.
65
Justice Jackson, one of the best writers to ever serve on the Supreme
Court, said, “If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be orthodox
. . . .”
66
The court did not return to the issue of student speech until 1969.
Tinker v. Des Moines Board of Education
67
is probably the high-water
mark of the Supreme Court protecting student speech.
68
Mary Beth and
John Tinker were students at a public high school in Des Moines, Iowa.
69
They wore black arm bands to school to protest the Vietnam War.
70
The
principal told them not to do so.
71
The principals thought that the
emotional subject of the Vietnam War would be too upsetting for students
in the school.
72
John and Mary Beth Tinker refused the order to take off their arm bands
and they were suspended as a result. The case went to the Supreme
Court.
73
In a seven-to-two decision, the Supreme Court ruled in favor of
John and Mary Beth Tinker.
74
Justice Fortas, not long before he left the
bench, wrote the majority opinion.
75
Justice Fortas famously said, “It can
hardly be argued that either students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.”
76
He
62
. 319 U.S. 624 (1943).
63
. Id. at 626-27.
64
. Id. at 635.
65
. Id. at 642.
66
. Id.
67
. 393 U.S. 503 (1969).
68
. See, e.g., Morse v. Frederick, 551 U.S. 393, 403 (2007).
69
. Tinker, 393 U.S. at 504.
70
. Id.
71
. Id.
72
. Id. at 518 (Black, J., dissenting).
73
. Id. at 504-05 (majority opinion).
74
. Id. at 514.
75
. Id. at 504.
76
. Id. at 506.
9
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 21
said schools have to prove actual disruption of school activities in order
to punish students for their speech.
77
Yet, in the cases that followed, until very recently, the Supreme Court
went the other way and allowed schools to punish student speech. The
next case in the series was Bethel School District v. Fraser,
78
decided in
1986. Matthew Fraser was a student at a high school in Bethel,
Washington state.
79
He gave a speech nominating another student for a
position in student government.
80
His speech had no profanities, but was
filled with sexual innuendos.
81
As a result, he was suspended from school
for a few days and was kept from speaking at his graduation as
scheduled.
82
Fraser sued and won in the Ninth Circuit.
83
However, the Supreme Court reversed and ruled against him.
84
The
Court said that schools are responsible for teaching civilized discourse to
the youth and thus can punish profane or indecent language.
85
There is
obvious tension between the students’ interests and the schools’. And
here, unlike in Tinker, the school won.
86
The next case in this series was Hazelwood School District v.
Kuhlmeier.
87
The case involved a high school newspaper in a town in
Missouri.
88
As part of the journalism class, students produced the high
school’s newspaper.
89
This is common in schools across the country.
There were a couple of articles in the newspaper that upset the principal,
one being about teen pregnancy.
90
The article did not glorify it. It
portrayed five students, identified only by pseudonyms and initials so that
nothing could identify them, lamenting the choices they made leading
them to their pregnancy.
91
The other article that was on the same page was
about the effects of divorce on the students.
92
Again, no students were
identified.
93
77
. Id. at 513.
78
. 478 U.S. 675 (1986).
79
. Id. at 677.
80
. Id.
81
. Id. at 677-78.
82
. Id.
83
. Id. at 679.
84
. Id. at 680.
85
. Id. at 683.
86
. Id. at 680.
87
. 484 U.S. 260 (1988).
88
. Id. at 262.
89
. Id.
90
. Id. at 263-64.
91
. Id. at 263.
92
. Id.
93
. Id.
10
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
22 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
The way the production worked in that school was that the principal
would review the paper before it came out.
94
It was actually at the printer
when the principal saw it and he felt those two articles were inappropriate
for high school students, so he ordered that the paper be published with
that page just being blank.
95
The students brought a lawsuit.
96
The suit
was based in basic First Amendment principles.
97
The students argued
that the censorship was a content-based restraint of speech.
98
But the
Supreme Court, in an opinion by Justice White, ruled in favor of the
school.
99
The Court held that a high school newspaper is a non-public
forum.
100
In other words, the principal got to control the content of the
newspaper and his choices did not violate the First Amendment.
101
The next case in the sequence was not for another almost thirty years.
In 2007, the Supreme Court decided Morse v. Frederick.
102
The Olympic
torch was coming through Juneau, Alaska.
103
A school released its
students to stand on the sidewalk to watch it go by.
104
A student, with his
friends, unfurled a banner that said, “Bong Hits 4 Jesus.”
105
(At the oral
argument, Justice Souter indicated he had no idea what that meant.
106
) But
the principal thought it was a message to encourage illegal drug use.
107
The principal confiscated the banner and suspended the student from
school.
108
The student sued.
109
Again, the student won in the federal court of appeals, but lost in the
Supreme Court.
110
Chief Justice Roberts wrote the opinion of the Court
and said that schools have an important interest in discouraging illegal
drug use.
111
Therefore, schools can punish speech that they see as
encouraging it.
112
94
. Id.
95
. Id. at 264.
96
. Id.
97
. Id.
98
. See id. at 262.
99
. Id. at 266.
100
. Id. at 267.
101
. Id. at 271.
102
. 551 U.S. 393 (2007).
103
. Id. at 396.
104
. Id.
105
. Id. at 397.
106
. Transcript of Oral Argument at 17, Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278).
107
. Morse, 551 U.S. at 398.
108
. Id.
109
. Id.
110
. Id. at 399-400.
111
. Id. at 402.
112
. Id. at 407.
11
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 23
How can the Court’s decisions in Bethel, Hazelwood, and Morse be
reconciled with the language of Tinker stating that students do not leave
their free speech rights at the schoolhouse gate?
There is one more case to consider. A recent decision from not quite
two years ago: Mahanoy Area School District v. B.L.
113
Brandi Levy was
a rising sophomore cheerleader in a public high school in Pennsylvania.
114
She tried out for the varsity cheerleading squad and was disappointed
when she learned she was assigned to the junior varsity team, and then
she became angry when she found out a freshman made the varsity team
ahead of her.
115
She went on a social media rant.
116
She raised both middle
fingers.
117
She repeatedly used four-letter profanity.
118
The next day she
did another rant, but without profanities. Both of these rants occurred over
the weekend.
119
The cheerleading coach saw her posts and said that it was inappropriate
conduct for a cheerleader.
120
The coach suspended her from the
cheerleading squad for a year and said she could try out the next year.
121
She and her parents sued.
122
They won in the district court.
123
They won in the Third Circuit.
124
And
they won in the Supreme Court in an eight-to-one decision.
125
Justice
Breyer wrote for the Court.
126
Only Justice Thomas dissented.
127
The
issue was to what extent schools can punish student speech made off-
campus, over social media, during non-school hours.
128
And this, of
course, is a set of issues that are enormously important today with regard
to the First Amendment.
129
So much of speech occurs over social media,
and First Amendment issues are often no longer about what is going on
in the classroom or in the school building as much what students can put
on Instagram, Snapchat, or Facebook.
113
. 141 S. Ct. 2038 (2021).
114
. Id. at 2043.
115
. Id.
116
. Id.
117
. Id.
118
. Id.
119
. Id.
120
. Id.
121
. Id.
122
. Id.
123
. Id.
124
. Id. at 2044.
125
. Id. at 2048.
126
. Id. at 2042.
127
. Id. at 2059.
128
. Id. at 2045.
129
. Id. at 2046.
12
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
24 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
Justice Breyer did not articulate a bright-line rule stating that students
can never be punished for such speech. But he did say that society should
be reluctant to allow schools to punish students’ off-campus speech.
130
He
explained that society doesn’t want schools to be able to punish students
for what they do twenty-four hours a day, seven days a week.
131
He said
that we want to teach the values of free speech, and you do not do that by
punishing students for their speech.
132
The parents are the ones who are
responsible when students are not in school.
133
But Justice Breyer also
was clear that this is not an absolute prohibition of punishing students for
their speech over social media.
134
If the student is engaged in bullying or
harassing behavior or cheating, then even off-campus speech might be
punished.
135
Ultimately, the Court went back to the standard of Tinker and said that
students can be punished for their off-campus speech only if there is an
actual disruption of school activities.
136
The crucial question moving
forward will be how that line is to be drawn.
The lesson that I draw from these cases is that the Supreme Court has
articulated the right test, but applying that test has proven enormously
difficult. The Court in Tinker and in Mahanoy School District is correct
in saying that to punish students for their speech, there must be an actual
disruption of school activities.
137
And yet when I look at the other
Supreme Court cases, and when I look at dozens and dozens of lower
court cases, the courts appear willing to give so much deference to school
officials and are willing to assume a disruption even when there is no
evidence of one.
138
IV. THE FIRST AMENDMENT AND A
SCHOOL’S ABILITY TO CONTROL ITS OWN ENVIRONMENT
The third area that I want to examine concerns the First Amendment
and the ability of a school to control its environment. Obviously, this
overlaps the first two points that I focused on, but I want to acknowledge
something different here. I believe that schools, whether we are talking
about elementary or high schools, colleges or universities (including law
130
. Id.
131
. Id.
132
. Id.
133
. Id.
134
. Id.
135
. Id.
136
. Id. at 2047.
137
. See id.; Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).
138
. See, e.g., Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986).
13
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 25
schools), have an obligation to create a learning environment that is
inclusive for all students, and it is essential that school administrators be
conscious of all things that might undermine the ability to have an
inclusive environment for all students. But to what extent can schools
regulate speech to achieve this learning environment?
In the early 1990s, over 350 colleges and universities adopted hate
speech codes.
139
These were unquestionably well-intentioned. There is
voluminous literature that hate speech undermines education and inflicts
injuries on those who have traditionally been excluded.
140
And yet every
hate speech code challenged in any court has been declared
unconstitutional. Usually, the codes were declared unconstitutional on
vagueness and overbreadth grounds. A typical case here is Doe v.
University of Michigan.
141
The University of Michigan had some very ugly racist incidents and
afterward adopted a hate speech code.
142
Among other things, it
prohibited speech that would stigmatize or demean on the basis of race,
sex, religion, or sexual orientation.
143
It took language from laws
prohibiting hate speech that exist in most European countries.
144
Among
others, a sociology graduate student brought a challenge to this and said
that his research was about whether there are inherent gender differences
between men and women, and he was worried that what he would find
could be seen as something meant to stigmatize or demean.
145
The federal
district court declared the Michigan hate speech code unconstitutional on
vagueness grounds.
146
Similarly, when the University of Wisconsin adopted a hate speech
code, it was deemed unconstitutional on vagueness grounds.
147
Several
years ago, I taught an undergraduate seminar titled Free Speech on
Campus, and I asked the students in the seminar to try to draft a hate
speech code that was not impermissibly vague or unduly overbroad. They
found it a daunting, if not impossible, challenge. Furthermore, the United
States Supreme Court has made clear on many occasions that hate speech
is protected by the First Amendment. I have so often been asked, “Where
is the line between hate speech and free speech?” I have to answer by
139
. ERWIN CHEMERINSKY & HOWARD GILLMAN, FREE SPEECH ON CAMPUS 82 (2017).
140
. See, e.g., Erin Grinshteyn et al., High Fear of Discriminatory Violence Among Racial, Gender,
and Sexual Minority College Students and Its Association with Anxiety and Depression, 19 INT’L J. ENV’T
RSCH. PUB. HEALTH (SPECIAL ISSUE) 2117 (2022).
141
. 721 F. Supp. 852 (E.D. Mich. 1989).
142
. Id. at 853.
143
. Id. at 856.
144
. See, e.g., Public Order Act 1986, c. 64, § 4.
145
. Doe, 721 F. Supp. at 859-60.
146
. Id. at 867.
147
. UMW Post, Inc. v. Bd. of Regents, 774 F. Supp. 1163, 1181 (E.D. Wis. 1991).
14
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
26 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
saying, that unless the speech rises to the level of incitement or true threat,
hate speech is protected.
Think of the Supreme Court’s case R.A.V v. City of St. Paul in 1992.
148
St. Paul, Minnesota adopted an ordinance prohibiting painting a swastika
or burning a cross in a manner likely to anger, alarm, or cause
resentment.
149
Swastikas and cross burnings are vile symbols of hate. But
the Supreme Court unanimously declared the law unconstitutional.
150
Some of the reasoning of course is in the vagueness of hate speech
laws, but I think some of it is more profound. In the United States, the
core of the First Amendment is that one can express any and all ideas and
views. And hate speech, however vile, is expression of an idea or a
viewpoint. And yet this still cannot be enough to absolve colleges and
universities of their obligation to create a conducive learning
environment. So, I contrast those cases with another more recent case,
Feminist Majority Foundation v. Hurley.
151
And again, I have to disclose
that this is a case that I argued in the Fourth Circuit.
152
It involves a public
university in Virginia, the University of Mary Washington.
153
The
university was debating the issue of whether to allow Greek life on
campus; whether to have fraternities and sororities.
154
Three women
wrote an op-ed in the campus newspaper opposing Greek life, saying that
when fraternities are present, there is an increase in sexual violence.
155
They were then targeted by other students over the social media
platform Yik Yak.
156
Hundreds of ugly messages were posted. Some
threatened the women with rape and murder.
157
The women went to
campus administrators but were rebuffed with campus administrators
saying that this was anonymous speech over social media and they could
not do anything about it.
158
In fact, the campus even posted on its website
that it had no responsibility for anonymous speech over social media.
159
The campus administrators offered to create a sharing circle where the
women could express their feelings and share their experiences.
160
148
. R.A.V. v. St. Paul, 505 U.S. 377, 381 (1992).
149
. Id. at 380.
150
. Id. at 396.
151
. 911 F.3d 674 (4th Cir. 2018).
152
. Id. at 679.
153
. Id.
154
. Id. at 680.
155
. Id. at 681.
156
. Id.
157
. Id. at 682.
158
. Id. at 688.
159
. Id. at 683.
160
. Id.
15
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 27
The students brought a lawsuit against the University of Mary
Washington.
161
The students sued under Title IX of the Civil Rights Act,
which says that educational institutions that receive federal funds cannot
discriminate based on sex, and that includes not tolerating sexual
harassment.
162
There cannot be deliberate indifference to sexual
harassment.
163
They also sued under equal protection.
164
The university
raised the First Amendment as a defense.
165
The federal district court ruled in favor of the university.
166
I
represented the students in the Feminist Majority Foundation in the
Fourth Circuit. I obviously am a strong believer in free speech, but I also
believe that campuses have the obligation to protect their students and the
campus here did nothing. There are many things that the campus could
have done short of punishing speech, but once the speech became so-
called “true threats,” then it was beyond the scope of the First
Amendment.
167
The Fourth Circuit agreed with this and in a published
opinion explained that the campus violated Title IX and there was an
equal protection claim as well.
168
But it is an enormously difficult issue that administrators at all levels
have to deal with. How do we balance speech rights, even if it is ugly
speech, with the need to create a conducive learning environment?
I have no doubt that the internet and social media make this ever more
difficult. So, if there is anything to take from my remarks today, it is how
pervasive free speech issues are and how difficult free speech issues are.
And so, I thought I would conclude with a few stories of just what I have
seen since coming to the University of California at Berkeley; the
experiences that I have had as an administrator there with regard to free
speech.
Berkeley was the home of the Free Speech Movement.
169
Regularly, I
walk through Sproul Plaza, which was where it began in 1964.
170
So, the
first story: something that happened in the first year that I was at Berkeley,
2017. A student group called the Berkeley Patriot decided that it was
going to invite speakers to come to campus for Free Speech Week,
161
. Id. at 684.
162
. Id.
163
. Id.
164
. Id. at 685.
165
. Id. at 683.
166
. Id. at 685.
167
. Id. at 691.
168
. Id. at 696, 703.
169
. Richard Gonzales, Berkeley’s Fight for Free Speech Fired Up Student Protest Movement, NPR
(Oct. 5, 2014, 7:57 AM), https://www.npr.org/2014/10/05/353849567/when-political-speech-was-
banned-at-berkeley.
170
. Id.
16
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
28 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
including Milo Yiannopoulos, Ben Shapiro, Charles Murray, and some
others.
The question was how should the campus respond to this? The
chancellor, Carol Christ, was very kind and asked my opinion about how
to deal with it. I suggested that the campus make sure that the most
controversial speakers were in an auditorium rather than out in Sproul
Plaza or the open area of campus. In an auditorium it is possible to restrict
who gets in and to have weapons detectors if necessary. It is possible to
control the premises. When Ben Shapiro came to campus, he was given
the largest auditorium on campus, but told he had to speak there and that
he would be required to pay a security fee.
171
He joined with other parties
and sued, and the case settled out of court.
172
The court analyzed the suit
with a time, place, and manner restriction with regard to speech, and
concluded that facially, the school’s “Major Events Policy” provided for
the restriction of speech.
173
The campus ended up spending $4 million on security to allow these
speakers to come to campus.
174
There is no clear answer to the question
of how much a campus must spend for security or the point at which it
can say that it cannot afford safety so it will exclude a speaker. The
chancellor decided—wisely I believe—that she wanted her message to be
that Berkeley is a free speech campus and she spent the $4 million. But
what if instead of Free Speech Week, it was Free Speech Month, or Free
Speech Semester, and what if the costs were not just $4 million but were
$40 million? Or $100 million for security? There has got to be a point at
which the campus can say, “We can’t afford that cost and therefore we’re
going to restrict the speech.” But no court has yet identified what that
point is, yet campuses will face it all over the country.
The second incident occurred in November of 2019. Ann Coulter came
to speak on campus on a Wednesday night. The next day, Thursday
morning, videos were shown to me and showed that those who went to
hear Ann Coulter were assaulted by others as they were walking into the
auditorium. They were pushed, shoved, spit at, water was thrown at them,
and the like.
175
So, I issued a statement to the law school in my role as
dean that when there is speech we do not like, the response should be
171
. Young America’s Found. v. Napolitano, No. 17-cv-02255-MMC, 2018 U.S. Dist. LEXIS
70108, at *24 (N.D. Cal. Apr. 25, 2018).
172
. Jonathan Stempel, UC Berkeley Settles Lawsuit Over Treatment of Conservative Speakers,
REUTERS (Dec. 3, 2018, 4:15 PM), https://www.reuters.com/article/us-california-lawsuit-ucberkeley-
idUSKBN1O22K4.
173
. Young America’s Found., 2018 U.S. Dist. LEXIS 70108 at *12.
174
. Jocelyn Gecker, UC Berkeley Spent $4 Million for Free Speech Event Security, ASSOCIATED
PRESS (Feb. 5, 2018, 7:27 PM), https://apnews.com/d18252af57444822bd901dbe343ce54c.
175
. 5 Arrested at Rally Against Ann Coulter Speech in Berkeley, AP NEWS (Nov. 21, 2019, 4:20
AM), https://apnews.com/59a3c2faf85046cbae47c0b7314a04fc.
17
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
2023] EDUCATION, THE FIRST AMENDMENT, AND THE CONSTITUTION 29
more speech. It is certainly appropriate to protest Ann Coulter, but it was
not appropriate for people to engage in the assaults of those going to hear
her. A university has to be a place where all ideas and views can be
expressed and we as a law school had to stand up for free speech
principles.
That afternoon on literally every bulletin board in the law school, this
was posted, “Dean Chemerinsky defends Ann Coulter, but not our
students.” It was posted on the Berkeley Law website that Dean
Chemerinsky “touts the intellectual acceptability of white supremacist
views.” And obviously I never did that. But my defense of Ann Coulter’s
ability to speak on campus and of others to hear her was certainly not
supported by a lot of our students.
One student came up and said, “Your issuing the statement, it was like
a slap in the face to me.” Students said that it was violence against them
to have Ann Coulter on campus. It made me worry about whether there is
a waning commitment to free speech among some of our students.
One more story, and I feel comfortable telling it publicly because it
made the front page of the New York Times, unfortunately, on December
22, 2022.
176
On the first day of the fall semester in August 2022, a student
group at Berkeley Law, Berkeley Law Students for Justice in Palestine,
asked all of the student groups, over 100 total, to sign a bylaw agreeing
that they would not invite any speakers to any event that ever had or
currently supported “Zionism, the apartheid state of Israel, or the
Palestinian occupation.” Not surprisingly, others in the community were
very upset by this, especially Jewish students and faculty. I sent a letter to
all of the leaders of student groups saying that I respect the free speech
rights of students, but I found this inconsistent with our values as a
community. In fact, under this bylaw, I could not be invited to speak
because I support the existence of Israel. I said that I would hope that
student groups, when choosing whether to adopt the bylaw, would be
sensitive to the feelings of all our students in creating an inclusive
community.
This all ended up going viral in the fall semester in a way I could have
never imagined. There were huge tensions. The position that I took, that
I continue to hold, is that student groups have the First Amendment right
to choose speakers based on their viewpoint; that the school cannot
compel them to have speakers of particular views or prohibit them having
speakers of particular views. But I condemn the bylaw as inconsistent
with our values. Not surprisingly, this pleased relatively few people.
There were those who said I should ban the bylaw as creating a
176
. Vimal Patel, Speaker Ban at Berkeley Law School Incites Free Speech Fight, N.Y. TIMES, Dec.
22, 2022, at A1.
18
University of Cincinnati Law Review, Vol. 92, Iss. 1 [2023], Art. 2
https://scholarship.law.uc.edu/uclr/vol92/iss1/2
30 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 92
discriminatory environment. Two lawyers, one in Florida and one in New
York, have filed a complaint against me and the law school with the
Office of Civil Rights of the Department of Education for creating a
hostile environment against Jewish students.
177
And on the other hand, the students from the Berkeley Law Students
for Justice in Palestine were very angry. They believed I had not
sufficiently supported them because I condemned the bylaw.
Now, why do I mention these three examples? They show us how
difficult the issues are concerning the First Amendment and education.
They also show how pervasive the issues are with regard to the First
Amendment and education.
V. CONCLUSION
In this way, these issues continue to come up at all levels and all parts
of the country. I know that law professors, lawyers, and judges are going
to be so influenced and benefit so much for years to come from the
scholarship of Ronna Greff Schneider.
177
. Christine Charnosky, Berkeley Law Facing Complaint Alleging Antisemitism, LAW.COM (Dec.
21, 2022, 10:43 AM), https://www.law.com/2022/12/21/berkeley-law-facing-complaint-alleging-
antisemitism/.
19
Chemerinsky: Education, the First Amendment, and the Constitution
Published by University of Cincinnati College of Law Scholarship and Publications, 2023
