Student barred from handing out Constitution on Constitution Day

Student barred from handing out Constitution on Constitution Day

bill-of-rightsAt Modesto Junior College, a student was ordered not to hand out copies of the Constitution on Constitution day.  He was also “told he needed to fill out a form in order to obtain permission to hand out copies of the U.S. Constitution . . . and that he could only hand out the materials in ‘that little cement area’ in front of the student center [the ‘free speech zone’] and only on a day when the area was not being used by other students.”

Lawyer Ken White explains why this censorship violated the First Amendment, and was not a reasonable “time, place, and manner restriction.”

This hostility to free expression would come as a shock to someone who was gullible enough to believe lobbyists for colleges, who claim that college attendance is essential if young people are to learn “civic values,” “common ideals,” and “critical thinking.”  The student prevented from handing out the Constitution at Modesto didn’t get his interest in the Constitution, or ability to think for himself, from some college bureaucrat.  (When he began to “question the authority” of the college to unconstitutionally restrict his speech, he was dismissively told not to “go on” about his constitutional rights.  So much for progressive pablum about “questioning authority.”  There are now “more administrators than teachers” at many colleges, coinciding with an increase in regulation and top-down control of students’ lives.)

College officials are sometimes so politically correct that they support government restrictions on the rights of their students even when the restriction also takes away the college’s own freedom of action and traditional autonomy to govern itself in accordance with academic norms.  On April 4, 2011, the Department of Education illegally ordered colleges to discard the traditional “clear and convincing” evidence standard in student and faculty discipline cases, for one particular, disfavored category of offense (sexual harassment or misconduct cases), and instead use a “preponderance-of-the-evidence” standard.  Never mind that historically, “Courts, universities, and student defendants all seem[ed] to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.”  See James M. Piccozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale Law Journal 2132, 2159 n. 17 (1987) citing Nicholas Trott Long, The Standard of Proof in Student Disciplinary Cases, 12 Journal of College & Univ. Law 71 (1985).  The Education Department’s 2011 “Dear Colleague” letter also discouraged colleges from allowing cross-examination in disciplinary proceedings to get at the truth, even though cross-examination had long occurred in many colleges’ disciplinary proceedings, and the Supreme Court has lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth,” see Lilly v. Virginia, 527 U.S. 116, 124 (1999).

Perversely, in Harris v. St. Joseph’s University, a college is invoking that Dear Colleague letter against a student who alleges he was wrongly suspended from school, arguing that the Education Department letter taking away the school’s autonomy to set its own procedures was itself binding federal law that federal judges must follow under so-called Chevron deference (never mind that the Education Department’s letter was based on flawed legal reasoning and erroneous assumptions, and without any public notice or comment, contrary to the Administrative Procedure Act).  I explain at this link why the Education Department’s demands are invalid, misinterpret federal court rulings, and are not entitled to any deference from the federal judiciary at all.   (The Education Department’s demands in that letter have been criticized by many legal scholars and law professors – such as Cornell’s Cynthia Bowman, former ACLU President Nadine Strossen at New York Law School, and former federal appellate judge Michael McConnell at Stanford– in addition to other lawyers, civil-libertarians, journalists, and the American Association of University Professors).

In “Suing Over Star Chamber Hearings,” I discuss the Brian Harris case, and another recent lawsuit (Yu v. Vassar College), by students who say they were wrongly expelled or suspended by their colleges despite clear evidence of innocence, in violation of their federal and contractual rights.  That piece can be found at Minding the Campus.

College bureaucracies continue to expand even during state fiscal crises.  A state university in California that claimed to have cut spending “to the bone” expanded its huge bureaucracy even further, creating a new full-time “vice chancellor for equity, diversity, and inclusion.” As the Manhattan Institute’s Heather Mac Donald noted, that position augmented the university’s “already massive diversity apparatus, which includes the Chancellor’s Diversity Office, the associate vice chancellor for faculty equity, the assistant vice chancellor for diversity, the faculty equity advisors, the graduate diversity coordinators, the staff diversity liaison, the undergraduate student diversity liaison, the graduate student diversity liaison, the chief diversity officer, the director of development for diversity initiatives, the Office of Academic Diversity and Equal Opportunity, the Committee on Gender Identity and Sexual Orientation Issues, the Committee on the Status of Women, the Campus Council on Climate, Culture and Inclusion, the Diversity Council, and the directors of the Cross-Cultural Center, the Lesbian Gay Bisexual Transgender Resource Center, and the Women’s Center.”  The constitution and civil-liberties may not be a priority for many college officials, but administrative empire-building sure is.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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