DGC(LEGAL) - EMPLOYEE RIGHTS AND PRIVILEGES: EMPLOYEE EXPRESSION AND USE OF COLLEGE FACILITIES
Note: For information on student expression on campus, see FLA. For information on community expression on campus, see GD.
A governmental entity, including a college district, shall take no action respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the board for a redress of grievances. U.S. Const. Amend. I, XIV
College district employees do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
However, neither an employee nor anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for unlimited expressive purposes. When a public employee makes statements pursuant to his or her official duties, the employee is not speaking as a citizen for First Amendment purposes, and the Constitution does not insulate the communications from employer discipline.
Garcetti v. Ceballos, 547 U.S. 410 (2006); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) [See also GD]
Academic Freedom Exception
Expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by the Supreme Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analyses we conduct today would apply in the same manner to a case through speech related to scholarship or teaching.
Garcetti v. Ceballos, 547 U.S. 410 (2006)
Protected Expression on Campus Under State Law
An institution of higher education, including a college district, shall:
- Ensure that the common outdoor areas of the institution's campus are deemed traditional public forums; and
- Permit any person to engage in expressive activities in those areas of the institution's campus freely, as long as the person's conduct is not unlawful, and does not materially and substantially disrupt the functioning of the institution.
Education Code 51.9315(c)
Education Code 51.9315(c) and (d) do not limit the right of student expression at other campus locations or prohibit faculty members from maintaining order in the classroom. Education Code 51.9315(e)
Time, Place, and Manner Restrictions
An institution of higher education may adopt a policy that imposes reasonable restrictions on the time, place, and manner of expressive activities in the common outdoor areas of the institution's campus if those restrictions:
- Are narrowly tailored to serve a significant institutional interest;
- Employ clear, published, content-neutral, and viewpoint-neutral criteria;
- Provide for ample alternative means of expression; and
- Allow members of the university community to assemble or distribute written material without a permit or other permission from the institution.
Education Code 51.9315(d)
By August 1, 2020, each institution of higher education shall adopt a policy detailing students' rights and responsibilities regarding expressive activities at the institution. The policy must:
- Allow any person to, subject to reasonable restrictions adopted under Education Code 51.9315(d), engage in expressive activities on campus, including by responding to the expressive activities of others, and student organizations and faculty to, subject to Education Code 51.9315(h), invite speakers to speak on campus;
- Establish disciplinary sanctions for students, student organizations, or faculty who unduly interfere with the expressive activities of others on campus;
- Include a grievance procedure for addressing complaints of a violation of this section;
- Be approved by a majority vote of the institution's governing board before final adoption; and
- Be posted on the institution's internet website.
Education Code 51.9315(f)
Approval of Speaker or Determination of Fee
In determining whether to approve a speaker to speak on campus or in determining the amount of a fee to be charged for use of the institution's facilities for purposes of engaging in expressive activities, an institution of higher education:
- May consider only content-neutral and viewpoint-neutral criteria related to the needs of the event, such as:
- The proposed venue and the expected size of the audience;
- Any anticipated need for campus security;
- Any necessary accommodations; and
- Any relevant history of compliance or noncompliance by the requesting student organization or faculty member with the institution's policy adopted under Education Code 51.9315(f) and any other relevant policies; and
- May not consider any anticipated controversy related to the event.
Education Code 51.9315(h)
Each institution of higher education shall develop materials, programs, and procedures to ensure that the institution's employees responsible for educating or disciplining students understand the requirements of this section and all policies adopted by the institution in accordance with this section. Education Code 51.9315(j)
Each institution of higher education shall make the institution's policies adopted in accordance with this section available to students enrolled at and employees of the institution by including the policies in the institution's student handbook and personnel handbook, providing a copy of each policy to students during the institution's freshman or transfer student orientation, and posting the policies on the institution's internet website. Education Code 51.9315(i)
Not later than December 1, 2020, each institution of higher education shall prepare, post on the institution's internet website, and submit to the governor and the members of the legislature a report regarding the institution's implementation of the requirements under this section. Education Code 51.9315(k)