Protecting free speech on campus has become a Herculean task.
In July of 2004, the Foundation for Individual Rights in Education (FIRE) wrote to UNC-Chapel Hill, explaining for the second time in less than two years that constitutionally protected freedom of association is meaningless if a group cannot exclude people who do not share the beliefs of the group. This is both basic common sense and clearly established law. The College Democrats can exclude Republicans, the college environmental club can exclude students who hate environmentalism, and the college chess club can exclude members who hate the game and wish to see it abolished. In other words, if you form a group in order to express commonly held ideas or ideals, of course you can exclude those who disagree.
U.S. Supreme Court Justice Robert Jackson wrote in the landmark case of West Virginia State Board of Education v. Barnette (1943) that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” His words were a ringing affirmation of the freedoms of conscience and expression that are central to American liberty.
Unfortunately, however, the notion that the government may not dictate what people may express or believe about controversial subjects has remained hotly contested. Those in power inevitably find it convenient to restrict expression or even dictate matters of conscience in order to ensure a more “just,” “fair,” or “orderly” society or organization.
Today, rules and regulations that restrict expression or dictate matters of conscience are often found at college or university campuses—including at the 16 schools that comprise the University of North Carolina System. As public institutions—agencies of the State of North Carolina—the universities in the UNC System are legally bound to uphold the First Amendment rights of their students and faculty. Unfortunately, they are failing miserably.