Public universityinvestigatingstudentsforsteppingonHamasandHezbollah flagsthat containedthe nameof Allah

Blumstein, James james.blumstein at Law.Vanderbilt.Edu
Thu Feb 15 10:28:47 PST 2007

    Just to gove folks on the list a heads up on this discussion -- it
is about to be part of a pending Supreme Court case to be argued in
April.  We are facing one part of  this issue pretty directly in TSSAA
v. Brentwood Academy (Disclosure: I am represneting Brentwood Academy
before the Supreme Court).  TSSAA is claiming (or so it appears from its
cert petition, which was granted) that a high school athletic
association (held to be a state actor in 2001) should receive special
solicitude in First Amendment terms because schools voluntarily subject
themselves to TSSAA's regulatory authority and therefore TSSAA asserts
non-sovereign contract authority not sovereign authority. As a result,
traditional First Amendment doctrine, which applies to the regulatory
context broadly defined, should not be applied, according to TSSAA.  The
Sixth Circuit held that the application of First Amendment principles(as
reflected in Southeastern Promotions) to the regulatory context  should
apply.  Southeaster Promotions involved a city's refusal to rent a
municipal auditorium for the show "Hair,"  and the Court applied
conventioinal First Amendment doctrine even though the setting was
contractual not sovereignty-based.  The facts show that the punished
communication was about an authorized activity (spring football
practice) and the TSSAA punished the speech about the practice while
allowing participation in the practice itself. No intent to violate the
rule is necessary in order to justify a sanction. 
    As far as I can tell, the government-as-non-sovereign analysis has
not been applied in the public university context or the public school
context (e.g., Southworth (referendum provision), Rosenberger, Widmar,
Barnette).  Nor has it been applied to other areas of voluntary
submission to non-sovereign regulatory activity such as accreditation or
certification (as contrasted to the arguably sovereign power of
licensure) -- see, e.g., Southeastern Promotions, Ibanez (a commercial
speech case involving the voluntary submission to the certifying
function of a state accountancy board).  The Court has treated the
doctrines the same in non-sovereign settings (Bantam Books) and equated
the First Amendment rule in regulatory and contract settings (compare
Abood and Keller).  The employment and service-contract setting
(Pickering/Connick/Umbehr) and government expenditure setting (Rust) are
exceptions, perhaps, but for very special and distinct reasons.   One
anomaly from the distinction is that a different First Amendment rule
would seem to apply if the speech restriction were imposed by the state
legislature (e.g., a student at a univeristy in the state is subject to
discipline if he or she uses speech that offends another student) as
distinct from the very same restriction imposed by the state university
president or its board of trustees (who exercise contract non-sovereign
power not sovereign power as in the case of the legislature)... Notably,
no such dual standard was applied in Sothworth (the referendum provision
essentially analyzed as a heckler's veto) or Barnette, whose compelled
flag salute was limited to public (not private) schools and so was
imposed in a non-sovereign capacity...
        Just thought that members of the list might want to be aware of
this issue coming up this Term....
Jim Blumstein


From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Kermit Roosevelt
Sent: Thursday, February 15, 2007 9:00 AM
To: Volokh, Eugene; conlawprof at
Subject: RE: Public
universityinvestigatingstudentsforsteppingonHamasandHezbollah flagsthat
containedthe nameof Allah

I didn't mean to suggest (and don't think I said) that public
universities should be treated *exactly* like private universities, any
more than public employers are treated *exactly* like private employers.
I meant that public universities might plausibly be understood as the
government acting in a non-sovereign capacity, and thus not treated like
the government as sovereign--just as, of course, public employers are
not treated like the government as sovereign when what's at issue is
their ability to terminate employment.  
I think that Tinker suggests that the Court does have something like
this in mind, because it uses an analysis somewhat similar to
Connick's--it asks about the possibility of disruption.  That is, it
allows for punishment based on communicative impact in certain
circumstances where it thinks that denying that power would make it
practically impossible for the government to carry out some
function--education, for Tinker, or whatever task the government
employer is engaged in, for Connick.  How that test would play out in
university contexts outside the classroom is a different question.  My
point is only that a public university regulating student speech is not
in the same position as the government as sovereign and thus the
workplace precedents are not, as Eugene suggested,  "far removed"
doctrinally from restrictions on speech at public universities--they're
all "government as non-sovereign" cases.


From: conlawprof-bounces at on behalf of Volokh, Eugene
Sent: Thu 2/15/2007 2:38 AM
To: conlawprof at
Subject: RE: Public university
investigatingstudentsforsteppingonHamasandHezbollah flags that
containedthe nameof Allah

        Well, I'd love to hear what others think about this -- should a
public university be constitutionally free to expel students for, say,
Communist speech or anti-war speech or blasphemous speech, on the theory
that a private university is constitutionally free to do the same?
That, I take it, is what it would mean for "state universitites to [have
the] power" "to mold a chosen educational environment by restricting
student speech on pain of expulsion," just as "private universities" are
able to. 

        The Supreme Court and lower courts have certainly not adopted
this view; even Kokinda balked at giving the government as proprietor of
post office sidewalks the power to discriminate based on viewpoint,
though private proprietors surely may, and one would think the rules
would be even more speech-protective at private universities.  Still, I
wonder what others think about the proposal.


> -----Original Message-----
> From: Kermit Roosevelt [mailto:krooseve at]
> Sent: Tuesday, February 13, 2007 12:38 PM
> To: Volokh, Eugene; CONLAWPROF at
> Subject: RE: Public university investigating
> studentsforsteppingonHamasandHezbollah flags that contained
> the nameof Allah
> I think you're right about Connick and government regulation
> of private workplaces.  I would think, though, that public
> universities are examples of the government acting in its
> non-sovereign capacity.  And to the extent that Connick and
> related cases like Kokinda stem from the idea that when the
> government is acting "like a business" it should be able to
> have authority similar to that of private businesses, I can
> see an argument that it would be strange for private
> universities to be able to mold a chosen educational
> environment by restricting student speech on pain of
> expulsion but for state universities to lack that power.
> Isn't that just like the argument for managerial authority in
> the state workplace?
> --
> Kermit Roosevelt
> Assistant Professor
> University of Pennsylvania Law School
> 3400 Chestnut Street
> Philadelphia PA 19104
> 215.746.8775
> -----Original Message-----
> From: conlawprof-bounces at
> [mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
> Sent: Tuesday, February 13, 2007 2:31 PM
> Subject: RE: Public university investigating
> studentsforsteppingonHamasandHezbollah flags that contained the nameof
> Allah
>       Surely Connick v. Myers doesn't support workplace harassment law
> as applied to private workplaces.  Connick is expressly based on the
> theory that "the State has interests as an employer in regulating the
> speech of its employees that differ significantly from those it
> possesses in connection with regulation of the speech of the citizenry
> in general."  See also Waters v. Churchill, 511 U.S. 661, 671 (1994)
> (plurality) (stressing the government's far greater powers when acting
> as employer); Civil Service Comm'n v. Letter Carriers, 413
> U.S. 548, 564
> (1973) (same); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)
> (same).
>       And if you really take seriously the notion that Connick allows
> the government *as sovereign* to proscribe "speech that disrupts
> workplace morale or harmony can be proscribed" -- or for that
> matter any
> speech that's on a matter of "private concern" (the very category that
> Connick held was unprotected against the government *as employer* --
> you'd get some remarkable results.  The government would be free, for
> instance, to use the threat of legal liability to force employers to
> fire employees who swear on the job; after all, it can fire government
> employees who do the same.  It could use the threat of legal liability
> to force employers to fire employees who create porn videos;
> after all,
> it can fire government employees who do the same (see City of
> San Diego
> v. Roe).  That can't possibly be right -- and Connick
> specifically says
> that this isn't right.
>       Of course, the case we were speaking about involved a public
> entity -- but a public university acting as educator, not the
> government
> acting as employer.  Nothing at all in the Court's public employee
> jurisprudence suggests that the same rules apply to the government
> controlling the speech of *college students*.  No lower court cases
> suggest this.  None suggest that Kuhlmeier, a case that
> expressly relied
> on the speech being in a K-12 school organ (the newspaper), applies to
> speech by university student groups in their own programs.
>       Am I missing something here?  It seems to me that these
> precedents are far removed, both factually and doctrinally,
> from either
> hostile workplace harassment law generally (as applied to private
> institutions) or from restrictions on student speech even at public
> universities.
>       Eugene
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