The Journal of College and University Student Housing - Volume 44, No. 3 - 84

Tess Barker * Amanda L. McLittle

ence to education's special nature has limits,
as seen in cases such as Doe v. University of
Michigan (1989).
in Doe v. University of Michigan (1989), a
federal district court opinion begins by stating,
"it is an unfortunate fact of our constitutional
system that the ideals of freedom and equality
are often in conflict. the difficult and sometimes painful task of our political and legal in-

Although the Court has affirmed
that students do not give up their
First Amendment rights simply
because they are students, it has
also affirmed that not all speech
is protected speech . Examples

fORUM TYPes

of speech unprotected by the

When considering first amendment issues in
housing, it is important to be clear on the type
of space or setting where the speech occurs.
Different types of locations, or "forums" in
legal parlance, have different levels of first
amendment protections. there are three main
types of forum to consider: traditional public
forum, limited public forum, and nonpublic
forum property.

First Amendment include:
Obscenity . . . Fighting Words . . .
and Inciting Speech . . .

stitutions is to mediate the appropriate balance
between these two competing values" (p. 853).
in this case, the university of michigan had
published an anti-racial harassment policy,
along with an interpretive guide, that forbade
"behavior, verbal or physical, that stigmatizes
or victimizes an individual on the basis of
race, ethnicity, religion, sex, sexual orientation,
creed . . . and that . . . creates an intimidating

84

hostile or demeaning environment for educational pursuits, employment or participation
in university sponsored extra-curricular activities" (Doe v. University of Michigan, 1989, p.
856). the court found the policy was vague and
overbroad, potentially covering speech that appeared to be protected under the first amendment. What is interesting, however, is that the
court appeared to have genuine respect for the
university's goals around diversity and education, even as it found legal fault with the policy
and guide. the lesson of Doe may be that while
courts, or even the public at large, have an intellectual appreciation for the goals of higher
education as they relate to diversity, equity, and
inclusion, neither courts nor our campus communities are willing to support limiting students' first amendment rights in pursuit of
those goals.

a traditional public forum (or "open,
public forum") is a place with a long tradition
of freedom of expression, such as a public park
or a street corner. the government normally
can impose only content-neutral time, place,
and manner restrictions on speech in a traditional public forum. Content-based restrictions
usually are not permissible under the first

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The Journal of College and University Student Housing - Volume 44, No. 3

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