U.S. Supreme Court Justice Robert Jackson wrote in the landmark case of West Virginia State Board of Education v. Barnette (1943) that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” His words were a ringing affirmation of the freedoms of conscience and expression that are central to American liberty.
Unfortunately, however, the notion that the government may not dictate what people may express or believe about controversial subjects has remained hotly contested. Those in power inevitably find it convenient to restrict expression or even dictate matters of conscience in order to ensure a more “just,” “fair,” or “orderly” society or organization.
Today, rules and regulations that restrict expression or dictate matters of conscience are often found at college or university campuses—including at the 16 schools that comprise the University of North Carolina System. As public institutions—agencies of the State of North Carolina—the universities in the UNC System are legally bound to uphold the First Amendment rights of their students and faculty. Unfortunately, they are failing miserably.
My organization, the Foundation for Individual Rights in Education (FIRE) has just released a Report on the State of the First Amendment in the University of North Carolina System. The Report, written with support from the Pope Center for Higher Education Policy, serves to educate the public about the widespread abuse of First Amendment rights within the UNC System, and to put North Carolina’s public colleges and universities on notice that it is unlikely−if not impossible−that most of the policies discussed in the report could survive a constitutional challenge.
The study summarizes the constitutional rights enjoyed by students and faculty in the UNC System, and details the ways in which many of the System’s member institutions have repressed these rights in the name of tolerance and civility. Our research revealed that 13 out of the 16 schools in the UNC System have at least one policy that both clearly and substantially restricts freedom of speech. Two schools have at least one policy that could be used to ban or excessively regulate protected speech. Only one school−Elizabeth City State University−does not maintain any policies that restrict the free expression of its students and faculty.
The following are some examples of unconstitutional policies in force in the UNC System:
➢ Appalachian State University prohibits “insults” and “taunts” directed at another person.
➢ East Carolina University prohibits “using abusive, obscene, vulgar, loud, or disruptive language or conduct directed toward and offensive to a member of or a visitor to the university community.”
➢ Fayetteville State University prohibits “vulgar language.”
➢ North Carolina Central University prohibits “statements of intolerance.”
➢ UNC Greensboro prohibits “disrespect for persons.”
➢ UNC Pembroke prohibits “offensive speech…of a biased or prejudiced nature related to one’s personal characteristics, such as race, color, national origin, sex, religion, handicap, age, or sexual orientation.”
➢ Winston Salem State University prohibits the use of “offensive language” over e-mail.
There is evidence that UNC System institutions are willing to unconstitutionally punish their students for engaging in protected expression. UNC Greensboro is currently trying to punish a group of students for holding a protest outside of the university’s two small “free speech areas.” Ironically, the students were actually protesting the existence of those very “free speech areas.” For exercising their First Amendment rights, the students have been charged with a “violation of Respect” and threatened with punishment. FIRE has intervened on the students’ behalf and is committed to seeing that the university upholds its legal obligation to respect the First Amendment.
Although there have been similar First Amendment incidents at only a few other UNC campuses, court precedents make it clear that most if not all of the codes and policies examined would be declared unconstitutional if challenged.
The General Assembly, the courts, or the UNC system should act to cleanse the system of unconstitutional restrictions on freedom of expression. North Carolina’s institutions of higher education should not remain content with a low standard in the area of fundamental American rights.
Greg Lukianoff is the interim president of FIRE.
