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Colleges and universities resuming in-person education for the fall semester are imposing restrictions on their students’ expressive and associational activities, both on and off campus, in an effort to contain COVID-19 and continue operations. FIREreceives reports from students about the restrictions now maintained by their institutions on a near-daily basis. We are evaluating each in turn, guided by our commitment to defending student and faculty rights and informed by several emerging principles.  

Viewpoint discrimination and compelled speech are prohibited

Colleges and universities cannot justify restrictions on the viewpoints advanced in student and faculty expression protected by the First Amendment (at public institutions) or by institutional policies and promises (at private institutions) because of COVID-19 or public health or safety concerns. There is no coronavirus exception to the First Amendment’s general requirement of viewpoint neutrality. 

No legitimate institutional interest is served by policies that restrict students or faculty from commenting on issues concerning the coronavirus and institutional protocols, nor may colleges and universities compel students and faculty on issues concerning the coronavirus. (Note, however, that university employees may be barred from revealing confidential medical information about individual students or faculty.) To the extent institutions already maintain sound policies that protect student and faculty expressive rights, those policies should be left unaltered. 

Public health practices may be mandated, but must be clear, published, and consistently enforced

In the interest of protecting the health of students, faculty, staff, and the larger community, colleges and universities may require students and faculty to follow certain practices such as wearing masks, maintaining distance from others, quarantining following travel or positive test results, and refraining from attending gatherings of a certain size. 

Any such requirements or regulations must be (1) clearly communicated to all students and faculty, particularly if they deviate from otherwise applicable state or local requirements; (2) published and announced as soon as possible and prior to any enforcement; and (3) consistently enforced (or, at the least, unlikely to result in disparate enforcement). 

When enforcing institutional regulations, similar conduct by similar parties must be treated similarly. Institutions may not condition enforcement on approval or disapproval of the context in which the conduct at issue occurred. 

Medical necessity must guide enforcement decisions, and cannot supersede procedural protections

In promulgating and enforcing restrictions, colleges and universities should endeavor to take the most practical measures necessary to protect the health of students, faculty, staff, and the larger community. Colleges and universities must provide students or faculty alleged to have violated institutional requirements with due process protections proportionate to the potential penalty. 

Medical restrictions should be favored over disciplinary sanctions whenever appropriate, particularly for unintentional or unavoidable conduct. Public health and the institution’s educational mission may be best served by requiring a student to quarantine and participate in academic work remotely, rather than eviction from university housing, suspension, or expulsion. 

While the pandemic may necessitate unique practices and precautions, any such requirements cannot come at the expense of basic due process protections. The need to act quickly does not eliminate the need to act fairly, and interim measures should afford students a hearing as soon as practicable.

Conclusion

Institutional COVID restrictions must be temporary and tied only to the threat to public health. Restrictions or disciplinary actions substantially unrelated to protecting public health should be rejected and reconsidered.

Unfortunately, FIREanticipates that institutions will attempt to justify certain violations of student and faculty rights by reference to the present threat to public health. We encourage all students and faculty who believe their rights have been violated to contact us.