Professional Standards and the First Amendment in Higher Education: When Institutional Academic Freedom Collides with Student Speech Rights

(Excerpt) Using the decisions in Keefe, Oyama and Tatro as analytical springboards, this Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.

Part III then proposes and defends a more free-speechfriendly standard for cases involving public university students who claim their First Amendment speech rights are impinged by enforcement of professional standards of care. Finally, the Article concludes in that the Supreme Court must quickly hear a college-level, professional-standards case to definitively resolve the proper test that lower courts should apply in these disputes. The Conclusion also emphasizes that drawing a legal distinction between college programs that are supposedly professional—ones preparing students for jobs requiring government certification or that are bound by profession-specific statutes—and those that are not is meritless. In brief, the same test proposed in Part III should apply to any college-level degree program when administrators cite an external professional standard of any kind to squelch speech.