University regulation of student speech: In search of a unified mode of analysis

Abstract

Universities are meant to be open marketplaces of ideas. This requires a commitment to both freedom of expression and inclusivity, two values that may conflict. When public universities seek to promote inclusivity by prohibiting or punishing speech that is protected by the First Amendment, courts must intervene to vindicate students’ rights. Currently, courts are split over the appropriate mode of analysis for reviewing public university regulation of student speech. This Note seeks to aid judicial review by clarifying the three existing approaches—public forum analysis, traditional categorical analysis, and a modified version of the Supreme Court’s education-specific speech doctrine— and proposes a more precise version of education-specific analysis. This Note proposes that when student speech may not be reasonably attributed to the school, any attempt by the university to regulate the content of student speech must be narrowly tailored to target only exclusionary speech and to protect core moral and political speech.