Justice360 – Legal Bulletin: Free Speech on Campus

No constitutional right is more likely to be used by and against American Muslims than the First Amendment guarantees to freedom of speech, religion, press, or assembly. In the academic world, where the exchange of ideas is a necessity, the importance of this right only becomes magnified. This is why Muslim student organizations and student groups across the nation in public universities should pay particular attention to the events that unfolded at UC Irvine over the past few months.  

On February 8, 2010, University of California Irvine hosted an event featuring Michael Oren, Israel’s Ambassador to the U.S.  Several students stood up and protested Israel’s policies towards Palestine during Mr. Oren’s speech. They were escorted out of the room by police officers and not allowed to return. Eleven UC Irvine and UC Riverside students were arrested and cited for disturbing a public event, but none were criminally charged. Those students also faced disciplinary charges by UC Irvine.

Months after the incident occurred, UCI administration issued an unprecedented decision to suspend the Muslim Student Union (“MSU”) for one year. The LA Times reported that “[t]he decision appears to be the first in recent memory at UC recommending the ban of a student group for something other than hazing or alcohol abuse.” While the protesting students were undeniably Muslim, the MSU, a group which claims nearly 250 members, has repeatedly stated that the individuals acted on their own and denied that the protest was organized by the group. UC administrators disregarded these claims based on e-mails allegedly showing MSU support and planning for the incident. Before the ban was announced, various pro-Zionist groups urged college-bound students and financial donors to stem support to UCI. The UCI MSU is currently appealing the ban with the University

Although UC Irvine stressed its ban stemmed not from the students' speech but for misrepresenting their role in the incident, free speech concerns are implicated. Muslim student organizations and other student groups should be aware of the guidelines, albeit very broad and general, that protect student speech. Traditionally, the Supreme Court has been amenable to a student group’s exercise of its First Amendment right. In Healy v Jackson it required that in order to prohibit a student group, a university must provide a compelling reason to believe that the group would seriously interfere with learning on a campus environment. While this is a “heavy burden” on the university, it has no obligation to tolerate activities which “infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.” These terms may appear ambiguous but they provide the following framework for Muslim students associations in public universities (not necessarily applicable to private universities):

1. When protesting or advocating issues, Muslim students should check the rules of the University to ensure they are acting within the boundaries of school policies.

2. The University’s rules themselves, however, should be reasonable, related to a legitimate purpose (e.g. discipline, safety, education), and applied fairly and consistently.

3. If a ban or other punishment is imposed, it is the University’s burden to show the appropriateness of the action, not the student group’s responsibility to show it was in compliance. (Think of this as the cousin of the “innocent until proven guilty” canon).

4. The infamous “guilt by association” is prohibited. Meaning the University could not ban a Muslim student organization even if a group of Muslim students broke the campus rules, unless the University has a link, based on evidence, between the two. In the case of UC Irvine, this evidence would be the alleged e-mails, if there indeed are any.

5. Lastly, if a student organization is banned or prohibited from forming by a University, the organizers should be given a hearing or the opportunity to appeal the decision.

Again, it is important to keep in mind that the above guidelines only apply to student groups in public universities.

The author of this article can be reached via email at Justice360@muslimcongress.org. For more information about Justice360, visit http://www.muslimcongress.org/360.

DISCLAIMER: Justice360° Legal Bulletin’s are meant to assist in the general understanding of the current law relating to the stated topics. JUSTICE360° LEGAL BULLETINS SHOULD NOT BE REGARDED AS LEGAL ADVICE. Organizations or individuals with specific questions should seek the advice of legal counsel.