My community college's "Student Rights" webpage states that the College District will not tolerate any discriminatory behavior on the part of its students. Now, I'm not advocating discrimination, but it seems to me that, in the context of speech, such a broad anti-discrimination policy would be deemed invalid by the courts. While attending college is a choice, public colleges are run by a government.

The college can certainly chastise a student. My question is not whether such a student can be required to refrain from discriminatory behavior as a condition of being allowed to hold a student office or a staff/faculty position; rather, it is whether the College can take disciplinary measures against a student who passes up such opportunities.

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    Unless you have a right to attend the college, it seems they can do everything up to and including making you leave and not come back. Perhaps another question here is whether there is any right to attend a publicly-funded college?
    – Patrick87
    Commented Jan 11, 2016 at 14:06
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    @Patrick87 That's not how it works. Just because you don't have a right to something from the government, doesn't mean the government can put whatever rules it wants on that something.
    – cpast
    Commented Jan 11, 2016 at 14:52
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    @cpast It appears you're right - I read around and the general consensus looks like publicly-funded schools are typically expected to honor these rights. Consider the ACLU here (aclu.org/hate-speech-campus) and some links in this article (washingtonpost.com/news/volokh-conspiracy/wp/2015/03/10/…). Still, I remember schools prohibiting lots of stuff that wouldn't fly in the real world. What gives? Just dumb kids not knowing their rights?
    – Patrick87
    Commented Jan 11, 2016 at 15:54
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    Do they define discriminatory behavior? If no, could provide a link to the policy, so I can read the language?
    – Viktor
    Commented Jan 11, 2016 at 16:54
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    @Zizouz212 The American constitution has two amendments. The First Amendment forbids our federal Congress from enacting laws that restrict freedom of speech or of the press (with reasonable exceptions, of course) The 14th Amendment is understood to extend the prohibitions outlined in the Bill of Rights to all other governments in the US and, by further extension, K-12 public schools. There might be case law that applies in my scenario.
    – moonman239
    Commented Jan 22, 2016 at 7:57

2 Answers 2


Content-based restrictions on speech cannot be imposed by the government, because of the 1st Amendment. This includes speech deemed to be "hate" or "discriminatory". Examples: Doe v. University of Michigan, 721 F. Supp. 852. The university prohibited

Any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status, and that...Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extracurricular activities.

The court invalidated this restriction because

The Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad

In UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163, the court struck down a similar governmental violation of the 1st Amendment:

The university may discipline a student in non-academic matters in the following situations:

For racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally:

  1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and 2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.

saying that

the suppression of speech, even where the speech's content appears to have little value and great costs, amounts to governmental thought control. An individual instance of thought control may not appear to impose great costs on society. However, if a balancing test is used there are likely to be many such instances. Taken as a whole, these instances will work to dissolve the great benefits which free speech affords.

The (state) university in Bair v. Shippensburg University, 280 F. Supp. 2d 357 had a rule that

The expression of one's beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another.

and the court yet again reminded us that

regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings.

DeJohn v. Temple University, 537 F.3d 301 centers around a rule that

all forms of sexual harassment are prohibited, including ... expressive, visual, or physical conduct of a sexual or gender-motivated nature, when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.

The consequence of this rule was that a student "felt inhibited in expressing his opinions in class concerning women in combat and women in the military".

Under the university policy,

a student who sets out to interfere with another student's work, educational performance, or status, or to create a hostile environment would be subject to sanctions regardless of whether these motives and actions had their intended effect. As such, the focus on motive is contrary to Tinker's requirement that speech cannot be prohibited in the absence of a tenable threat of disruption


the policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality. Absent any requirement akin to a showing of severity or pervasiveness that is a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work the policy provides no shelter for core protected speech.

This is a matter similar to Roe v. Wade: it's settled law, and yet government agencies still seek to circumvent the law by constantly re-wording the restriction.


if its disruptive, they can limit speech. "Now, I'm not advocating discrimination, but it seems to me that, in the context of speech, such a broad anti-discrimination policy would be deemed invalid by the courts." the policy isnt the issue. enforcement of the policy would be the issue. its overbroad, but whether the school is admonished/penalized depends on action they actually take.

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