Public colleges and universities are vulnerable to lawsuits and challenges by watchdog groups such as the Foundation for Individual Rights in Education and the Student Press Law Center, with the expectation that public institutions must be vigilant about protecting free expression (free speech, religion and press) and not create policies that unreasonably burdens an individual's rights as protected by the First Amendment of the Constitution.  Although public colleges and universities must protect the free expression rights of all members of the community, enrolled students enjoy a higher level of protection than employees based upon the distinctions of the relationships.  Additionally, within the classroom, professors enjoy a measure of protection for the educational environment under the concept of Academic Freedom as expressed in 1940 by the American Association of University Professors.  Federal courts of appeals and the United States Supreme Court rulings articulate a strong message to public colleges and universities about the First Amendment rights of the members of those communities.  The recent case of DeJohn v. Temple University, (U.S. Ct. of Appeals, 3rdCircuit, 2008) held against the university in the language of their sexual harassment policy and, additionally found against the President of Temple University in his personal capacity for permitting publication of a policy that violated the free expression rights of the students and employees.

Saundra K. Schuster, Esq. leads the institutional First Amendment assessment process for The NCHERM Group.  She is a highly recognized expert and author on matters involving the First Amendment.  She brings to The NCHERM Group over 30 years of experience as a university administrator and college and university attorney, including nine years as the Senior Assistant Attorney General for the State of Ohio, Education Section which represents 53 public colleges and universities and as General Counsel for Sinclair College, a public two-year institution.  Ms. Schuster will provide a comprehensive assessment of all areas of First Amendment risk, or an audit of specific areas of concern.  Additionally, Ms. Schuster will assist in the development of compliant policies or provide advice or training for targeted groups, or the institution on First Amendment Issues.  Areas that pose the most significant First Amendment compliance risks include:

  • Policies
    • Sexual Harassment Policies
    • Campus Access Policies
      • Who has access to campus space
      • Limitations on campus space usage
    • Policies prohibiting certain types of speech (controversial, hate speech)
    • Limitations on visual expressions (flags, posters, calendars, etc.)
    • Policies regarding campus protests or demonstrations
    • Policies regarding chalking
    • Policies related to religious organizations (meeting space, recognition, membership limitations)
    • Campus Speakers policies
  • Responding to cyberspace postings
  • Student Organization Recognition and Funding
  • Academic Freedom guidance
  • Campus Newspapers and Publications
  • Responses and Limitations on Student Groups' Expression
  • Responding to classroom disruption
  • Addressing political speech and campaigning

For more information, contact Kate Halligan, Vice President of Client Relations at kate@tngconsulting.com or (610) 579-3725.