Constructing Students' Speech Rights, from College Admissions to Professional Schools

Abstract

In a closely watched 2021 ruling concerning a high school student’s profane post on Snapchat, the Supreme Court declined to shed significant light on the murky First Amendment status of speech that K-12 students produce off campus, whether on social media or elsewhere. Legal uncertainties concerning such speech afflict higher education, as well. I focus on two dimensions of that uncertainty here. First, many admissions officers say they look at college and university applicants’ social-media posts when making their admissions decisions. Yet only one federal appellate court has said anything at all about whether the First Amendment restricts public postsecondary institutions’ ability to reject applicants because of their speech, and the court in that case only addressed speech that applicants produce as part of the admissions process. Second, there recently has been a spate of efforts by professional schools (in pharmacy, medicine, dentistry, and the like) to discipline students for speech that school officials believe violates professional standards. Yet only a few federal courts have grappled with the thorny First Amendment issues that such cases raise, and those courts have not always agreed on how the constitutional analysis should proceed.

In this Article, I tackle those and related matters by drawing lessons from the comparatively well-developed First Amendment law of public employment. Public employment and postsecondary education are importantly different in some ways but usefully similar in others. Building on the similarities, I provide analytic frameworks for determining when the First Amendment bars admissions officers from rejecting applicants because of their speech and when it bars professional schools from disciplining students for speech that falls short of professional standards. I also provide a lens for more deeply understanding the speech rights of postsecondary students in curricular settings of all kinds.

Keywords: first amendment, speech, college, university, higher education, student, hazelwood, social media, admissions, college application, professional, professional school, public employee

JEL Classification: K00, K10, K19, K30, K39