Here’s a bit of non-news for you: The debate over abortion rights isn’t going anywhere anytime soon. This is doubly true in the college community. Fortunately, the Supreme Court has long recognized the importance of keeping public universities fully open to debate and discussion, finding the campus to be “peculiarly the ‘marketplace of ideas’” in 1972’s unanimous decision in Healy v. James. The University of Alabama seems to have missed this memo, however, given its recent treatment of a pro-choice student group.
Rewind to April 9 of this year, when a UA student group, the Alabama Alliance for Sexual and Reproductive Justice, received word that another group, Bama Students for Life, was staging a “Genocide Awareness Project” protest, featuring large, graphic abortion-related images, on UA’s quad. Learning of the event not 24 hours before it was set to begin, AASRJ members decided to distribute fliers criticizing the protest’s anti-abortion message. They did so for about an hour on April 10 without incident, until someone complained to the UA Police Department about the content of one of the fliers. UA police then told AASRJ members that they were not allowed to distribute their fliers without a grounds use permit, and that if they continued to do so they could face arrest.
This requirement put AASRJ in an impossible spot. The event AASRJ was peacefully protesting was immediate and ongoing. But UA’s grounds-use policy states that while grounds use permits can be obtained in as few as three days, students should be prepared for the process to take up to 10 days. Allowances for spontaneous expression? None.
This was a big problem for my organization, the Foundation for Individual Rights in Education, and we wrote a letter to UA President Judy Bonner saying so on May 22. More than six weeks later, with media pressure mounting, FIRE has received no response. (Bama Students for Life, meanwhile, has spoken up in favor of AASRJ’s free speech rights and in support of reforming UA’s grounds-use policy.)
Colleges are not entirely without authority to place restrictions on certain campus activity, of course. In Ward v. Rock Against Racism, for example, the Supreme Court ruled that government actors like UA can place reasonable “time, place and manner” restrictions on certain expression. But the court also ruled that any such restrictions must be “narrowly tailored” to “serve a significant governmental interest.” In UA’s case, this likely means ensuring that the essential business of teaching and administration isn’t disrupted. But these students weren’t trying to stage the next Live Aid concert on the quad. They were peacefully handing out fliers on a matter of public concern. What legitimate interest is being served by preventing them from doing so without a permit? Your guess is as good as mine. Simply put, a handful of students peacefully distributing fliers on the main public area of a public university campus should never have to obtain permission from their university for the privilege of doing so.
From a practical standpoint, requirements that students seek permission for their expression a minimum number of days in advance are at odds with the reality of campus life. Spontaneous gatherings, protests, and demonstrations are a common feature of the modern campus, as students (like the general public) often want to respond to world events in real time. Just think of the recent rulings handed down by the Supreme Court on affirmative action, the Voting Rights Act, the Defense of Marriage Act, and Proposition 8. If students, upon hearing the news of such rulings, wanted to take to the quad and rally support or opposition for the rulings, does UA really want to tell them they might have to wait 10 days to do so?
There are potential legal problems for UA as well. Take, for instance, a University of Cincinnati “free speech zone” policy struck down in federal court last year. One problem area of the policy identified by the court was an advance notice requirement not unlike the one found in UA’s grounds use policy — one which the court found unacceptably injurious to student First Amendment rights.
So if UA doesn’t act quickly to rectify this injustice and clean up its policies, it may find itself not only on the wrong side of common sense, but of the law as well. Crimson Tide administrators had best roll over before they get rolled.