PREVENTING FUTURE INCIDENTS?
As events in Alabama unfold, the larger question arises: If such actions are
protected by the Constitution, what would prevent similar acts from occurring at other colleges in the future?
"Free speech is one of the bedrock principles of the First Amendment," Sedler says. "And the Supreme Court says you cannot prohibit speech on the grounds that it is offensive."
In addition, university discipline can often lack teeth because the language in harassment policies and student codes of conduct "tends to be very broad, such that colleges open themselves up to a vagueness charge," says Susan Low Bloch, a professor at the Georgetown University Law Center in Washington, and an expert on constitutional law.
In terms of setting a legal precedent however, Bloch says not too much should be read into a county judge ordering Auburn to reinstate the students.
"It means the judge thinks there is a pretty good chance they will win on the merits," she says. "Also that he felt it might cause too much harm to them to keep them out of school. They would be losing their academic semester."
The outcome, Bloch says, could hinge on how well Auburn tailored its harassment policies, which it cited when suspending the students in the first place.
"If the Auburn students win, it would tell the university to look at its policies to ensure that they are narrowly tailored, but sufficiently protective of the students' First Amendment rights," Bloch says.
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