Though you may not have been aware of it, three U.S. Supreme Court decisions this year had a measurable impact on the state of campus free speech, even though they didn’t directly address the topic.
These decisions “should help to clarify protections for freedom of expression and association on public-university campuses — allowing proactive universities to bolster the rights of students and faculty,” writes Casey Mattox at National Review.
In one of those decisions, “Minnesota Voters Alliance v. Mansky,” the Court held that “while states may limit expression in a polling place, they must ‘draw a reasonable line’.” The court declared that “if a state restricts speech in a non-public forum, such as a polling place, the discretion provided to government officials in enforcing that restriction ‘must be guided by objective, workable standards’.”
As Mattox points out, “The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it:”
It is well settled that viewpoint discrimination is prohibited in student-organization recognition, student-activity funding, approval of student flyers, and similar forums on college campuses. But an open question remained about what universities must do to proactively ensure that officials cannot engage in this discrimination. In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination.
“[T]he decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus,” Mattox writes. “Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.”