NC State Continues to Defend Unconstitutional Policy

Imagine a college student who has just formed a student group. In order to generate interest in this group, the student goes to the student union and passes out flyers for the inaugural meeting.

According to North Carolina State University, this student has just violated campus policy by failing to gain prior approval for his “solicitation.”

The policy in question is University Regulation 07.25.12, entitled “Solicitation.”  The policy reads:

2.4 “Non-Commercial Solicitation” means any distribution of leaflets, brochures or other written material, or oral speech to a passersby, conducted without intent to obtain commercial or private pecuniary gain. This definition does not include the dissemination of information for purposes of the administrative, academic, research, or extension activities of the University….

3.1 Groups or individuals wishing to conduct any form of solicitation on University premises must have the written permission of the Student Involvement in advance. All forms of solicitation must be approved by Student Involvement, and, if applicable, by the administrator responsible for the facility or location where the activity is to be held. However, except for University-approved vendors, groups may not conduct any form of solicitation at University-sponsored or hosted events held at Carter-Finley Stadium, Murphy Football Center, Vaughn Towers, PNC Arena and/or the parking lots surrounding these facilities.

Just two days after a preliminary hearing in June, a United States district court judge ordered an injunction against the NCSU policy on the grounds that the policy facially violated the First Amendment.

The lawsuit, brought by a Christian student group, claims that NCSU’s policy amounts to an unconstitutional prohibition on free speech. Furthermore, the students claim to have witnessed and documented numerous instances when NCSU administrators failed to enforce the solicitation policy on other student groups.

“Public universities are supposed to be the marketplace of ideas, not places where students need a permit just to exercise their constitutionally protected freedoms. The only permit needed to engage in free speech is the First Amendment,” said Senior Counsel Tyson Langhofer of the Alliance Defending Freedom, which is representing the student group.

Despite the judge finding that the student group had sufficiently established that the lawsuit is likely to succeed in overturning the campus policy, and that it is likely to suffer irreparable harm if the policy were to remain in place, NCSU has stood by its policy.

In a statement to the Daily Signal, NCSU said:

NC State appreciates the court’s review of this matter, and we will follow the court’s preliminary ruling. The university remains an environment that fosters and enables the healthy and free exchange of ideas and viewpoints by our students and academic community. The ruling is not in response to a concern over the university’s actual application of the policy, which is content neutral.

Unfortunately, numerous First Amendment experts disagree that NCSU’s policy itself is constitutionally sound. Writing for the Foundation for Individual Rights in Education (FIRE), Adam Steinbaugh explained that, “A university cannot say ‘you can’t speak ever without permission.’ Even if such a policy were reasonable in scope, it cannot then fail to say what the criteria are to be eligible for such a permit.”

This isn’t the first time NSCU has been scrutinized for impeding students’ free speech rights. A portion of campus known as the “free expression tunnel” is often at the center of controversy. The tunnel connects two parts of campus and is marketed to students as a place where they can paint anything they wish to express.

In 2008 there was uproar following an offensive statement painted in the tunnel. In this case, however, the administration wearily stood on the side of free expression. Then-Chancellor James Oblinger stated that, “Many of you have asked what the University can do to stop hate-filled speech on our campus…. There are legal limits to our ability to make rules against such messages.” In response, students and local NAACP leaders formed a human blockade to restrict access to the tunnel for all students.

In 2011 the controversy shifted to NCSU’s campus housing civility policy. The policy mandated that residents “Change any behavior that does not support our community expectations,” which included “speaking to each other in a civil manner,” and “refrain from displaying items that are disrespectful and hurtful to others.”

The vague policy led FIRE to write a letter to NCSU chancellor Randy Woodson explaining the issues with the policy and citing case law clearly indicating that courts would likely find the policy indefensible. Fortunately, the administration amended the policy to state that the “University is strongly committed to freedom of expression. The University Housing Civility Statement is not intended to interfere in any way with an individual’s academic or personal freedoms.”

Unfortunately, by 2015 the NCSU administration appeared to forget their legal obligations to protect free expression. In another free expression tunnel controversy, administrators provided students with stencils that read “State not Hate” and encouraged students to use them to cover any messages in the tunnel that students thought were hate speech or offensive language. While this move wasn’t challenged as blatantly unconstitutional, FIRE’s Susan Kruth explained that, “For a university to encourage someone to cover up someone else’s writing may provide some constitutional cover, it isn’t just ‘another form of expression’—it’s clear what NC State is asking student to do, and what it expects from them.”

In the past decade, we’ve observed countless lawsuits against similar policies in effect at universities. And they don’t hold up in court. The case law regarding a university’s obligation to protect the First Amendment is extensive, and has demonstrated that the courts nearly always side with the plaintiffs.

NCSU, with its less than stellar free speech record, will likely settle or lose this case. And to what end? It is spending taxpayer money defending a policy that, in practice, deprives students of their free speech rights. In this case especially, by requiring prior approval for speech, the university is stifling spontaneous interactions.

At this point it would be wise for NSCU to eliminate the solicitation policy and seriously reevaluate its commitment to free expression.