The UNC Policy
Manual
1300.8
Adopted 12/15/17
Technical
Corrections 08/19/19
Policy on Free
Speech and Free Expression Within the University of North Carolina System
I.
Purpose
Consistent with
Article 36 of Chapter 116 of the North Carolina General Statutes, the Board of
Governors adopts this policy to support and assist the constituent institutions
of the University of North Carolina System[1] in their
continuing efforts to embrace the free speech and free expression rights of the
members of their campus communities, and balance those
rights with protections against unlawful activity. This policy supplements
other University policies, regulations, and guidelines related to free speech
and free expression.[2]
II.
Statement
of Commitment
As the nation’s
first public university, the University of North Carolina affirms its
long-standing commitment to free speech and free expression for its students,
faculty members, staff employees, and visitors under the First Amendment of the
U.S. Constitution and Article 1, Section 14 of the North Carolina
Constitution. The University and its
constituent institutions protect and promote these freedoms, consistent with
First Amendment jurisprudence.
The University’s
mission includes the transmission and advancement of knowledge and
understanding, the pursuit of which is dependent upon the ability of our
faculty and students to remain free to inquire, to study and to evaluate, to
gain new maturity and understanding.[3]
The University supports and encourages freedom of inquiry for faculty
members and students, to the end that they may responsibly pursue these goals
through teaching, learning, research, discussion, and publication, free from
internal or external restraints that would unreasonably restrict their academic
endeavors.[4] The University has explicitly stated that
faculty and students of the University share the responsibility for maintaining
an environment in which academic freedom flourishes and in which the rights of
each member of the academic community are respected.[5] Academic freedom has indeed been acknowledged
by the Supreme Court as “of transcendent value to all of us” and “a special
concern of the First Amendment, which does not tolerate laws that cast a pall
of orthodoxy over the classroom.”[6]
Through its policies, the University has expressly established that no
employment decision or academic decision shall be based on the exercise of
these constitutional rights.[7]
The General
Assembly has recognized the University’s commitment to upholding free speech
and free expression, and has reinforced the importance of these rights as well.[8] Through G.S. 116-300, the General Assembly has
affirmed that the primary function of the University of North Carolina and each
of its constituent institutions is the discovery, improvement, transmission,
and dissemination of knowledge by means of research, teaching, discussion, and
debate. To fulfill this function, each constituent institution must strive to
ensure the fullest degree of intellectual freedom and free expression. It is
not the proper role of any constituent institution to shield individuals from
speech protected by the First Amendment, including, without limitation, ideas
and opinions they find unwelcome, disagreeable, or even deeply offensive.
III.
University’s
Role in Public Policy Controversies
The University’s
role in supporting and encouraging freedom of inquiry requires assuring
opportunities for the expression of differing views regarding many issues in
multiple areas of study, research, and debate, including current political and
social issues. The constituent institutions serve an essential role in
encouraging and broadly protecting freedom of thought and expression. In
support of the essential role universities hold, the constituent institutions
may not take action, as an institution, on the public policy controversies of
the day in such a way as to require students, faculty, or administrators to
publicly express a given view of social policy.
IV.
Free
Expression at UNC System Constituent Institutions, Including Access to Campus
Students, staff,
and faculty have the freedom to discuss any problem that presents itself, as
the First Amendment permits and within the limits of viewpoint- and
content-neutral restrictions on time, place, and manner of expression that are
necessary to achieve a significant institutional interest. The constituent institutions must assure that
any such restrictions are clear, published, and provide ample alternative means
of expression.
Students, staff,
and faculty shall be permitted to assemble and engage in spontaneous expressive
activity as long as such activity is lawful and does not materially and
substantially disrupt the functioning of the constituent institution, subject
to the requirements of this policy. A “material and substantial disruption”
includes, but is not limited to, any or all of the following:
A.
Any action that qualifies as disorderly conduct under G.S.
14-288.4;
B.
Any action that qualifies as a disruption under G.S. 143-318.17;
C.
Any action in violation of a chancellor’s designation of a
curfew period pursuant to G.S. 116-212;
D.
Any
action that results in the individual receiving a trespass notice from law
enforcement.
Access to campus
for purposes of free speech and expression shall be consistent with First
Amendment jurisprudence regarding traditional public forums, designated public
forums, and nonpublic forums. Consistent
with First Amendment jurisprudence, including any reasonable time, place, and
manner restrictions adopted by a constituent institution, campuses of the
constituent institutions are open to any speaker whom students, student groups,
or members of the faculty have invited.
Even
so, all real property on the campus of any constituent institution or the UNC System
Office, including without limitation all campus grounds, buildings, facilities,
stadiums, or other improvements, that is owned, leased, used, or otherwise
controlled by the University or one of its constituent institutions
(“University Property”), is dedicated for the specific purpose of furthering
the educational, research, and/or service missions of the institution. Consistent with the First Amendment, many
areas of University Property are not open for general public use. University Property is routinely utilized for
institutional activities and events which can present safety and security
issues for the institution. Therefore, all persons on University Property must
abide by all applicable laws and regulations as well as policies of the
constituent institution and the Board in order to further the missions of the
institution and for the protection of the students, faculty members, staff
employees and guests of the institution.
Thus, a constituent institution may deny or condition entrance onto or
into University Property or remove from the same, any person whose presence
substantially interferes with or materially and substantially disrupts the
institution’s missions, including interfering with or disrupting the classroom
environment, laboratory or research environments, or patient care environments,
or any person who violates or refuses to comply with any Board or institutional
policy or applicable law or regulation. Under no circumstances shall University
Property be utilized to carry out unlawful activity.
V.
Speech
and Expression Not Protected by Policy
Except as
further limited by this policy, constituent institutions shall be allowed to
restrict speech and expression for activity not protected by the First
Amendment under State or federal law, including but not limited to, all of the
following:
A.
Expression
that a court has deemed unprotected defamation.
B.
Unlawful
harassment.
C.
True
threats, which are defined as statements meant by the speaker to communicate a
serious expression of intent to commit an act of unlawful violence to a
particular individual or group of individuals.
D.
An
unjustifiable invasion of privacy or confidentiality not involving a matter of
public concern.
E.
An
action that materially and substantially disrupts the functioning of the UNC System
Office, a constituent institution, or any other unit or entity of the
University, or that substantially interferes with the protected free expression
rights of others.
F.
Reasonable
time, place, and manner restrictions on expressive activities, consistent with
G.S. 116-300(4).
G.
Speech
that interferes with the treatment of patients.
VI.
Dissemination
of Information About Institutional Policies
A.
Information
for Students. All constituent
institutions of the University of North Carolina System shall include in any
new student orientation programs a section describing their institutional
policies regarding free speech and free expression consistent with this policy
and with Article 36 of Chapter 116 of the North Carolina General Statutes. Any information provided also should include
the name and contact information of the institutional officer, office, or
department with responsibility for ensuring compliance with this policy and for
answering any related questions or concerns.[9]
The constituent institutions are
required to periodically provide this same information to all students,
including returning undergraduate students, transfer students, and graduate and
professional students.
B.
Information
for Faculty and Staff. All constituent
institutions of the University of North Carolina System are required to
periodically provide to faculty and staff information describing their
institutional policies regarding free speech and free expression consistent
with this policy and with Article 36 of Chapter 116 of the North Carolina
General Statutes. Any information
provided should also include the name and contact information of the
institutional officer, office or department with responsibility for ensuring
compliance with this policy and for answering any related questions or
concerns.
C. Information for
Outside Parties. All constituent
institutions of the University of North Carolina System are encouraged to make
available to outside parties information describing
their institutional policies regarding free speech and free expression
consistent with this policy and with Article 36 of Chapter 116 of the North
Carolina General Statutes. Any
information provided should also include the name and contact information of
the institutional officer, office, or department with responsibility for
ensuring compliance with this policy and for answering any related questions or
concerns.
VII.
Consequences
for Violation of Policy
The right to
dissent is the complement of the right to participate in expressive activity,
but these rights need not occupy the same forum at the same time. The constituent institutions are encouraged
to work with students, faculty members, and staff employees to develop
alternative approaches so as to minimize the possibility of disruptions and
support the right to dissent.
A. Disciplinary
Sanctions. The UNC System Office and
each constituent institution shall implement and enforce a range of
disciplinary sanctions, up to and including dismissal or expulsion, for anyone
under the jurisdiction of the UNC System Office or the constituent institution
who materially and substantially disrupts the functioning of the UNC System
Office, a constituent institution, or any other entity or unit of the
University, or substantially interferes with the protected free expression
rights of others.[10]
A “material and
substantial disruption” or “substantial interference” is any action that
qualifies under section IV of this policy.
Such actions include protests and demonstrations that materially
infringe upon the rights of others to engage in and listen to expressive
activity when the expressive activity (1) has been scheduled pursuant to this
policy or other relevant institutional policy, and (2) is located in a
nonpublic forum. In determining whether
an action is a “material and substantial disruption” or “substantial
interference,” the UNC System Office or the constituent institution should
consider the degree to which the disruptive activity impedes access to or from
any scheduled institution events or the degree to which the activity impedes an
audience’s ability to see and hear the expressive activity.
For example, when
an expressive activity event is closed to the public, dissent by non-attendees
should be limited to activity outside the event that does not impede access or
departure from the meeting or substantially interfere with communication
inside. When the event is open to the
public, whether the dissenters’ actions constitute a substantial disruption or
interference will depend upon whether the dissenter is inside or outside the
event, and on whether the dissenter is acting before or after the event or
during the event. However, it is a
substantial disruption or interference for such dissent to interfere
substantially with the free flow of traffic into or out of the event or to
interfere substantially with the expressive activity.
Anyone who
substantially interferes with acceptable forms of dissent is also considered in
violation of this policy in the same way as a dissenter who violates the rights
of the speaker or the audience.
1.
Any University
student, faculty member, or staff employee who is found to have materially and
substantially disrupted the functioning of the UNC System Office, a constituent
institution, or any other unit or entity of the University, or substantially
interfered with the protected free expression rights of others shall be subject
to a full range of disciplinary sanctions according to the appropriate
disciplinary procedures for misconduct, including suspension, or, as
appropriate, expulsion or dismissal. Any
second finding of a material and substantial disruption or substantial
interference shall presumptively result in at least a suspension as provided by
the appropriate disciplinary procedures; however, the institution may impose a
different sanction if warranted. Any
third finding of a material and substantial disruption or substantial
interference shall presumptively result in an expulsion of the student or
dismissal from employment of the faculty member or staff employee; however, the
institution may impose a different sanction if warranted.
2.
Any
guest or other individual on the campus who is alleged to have substantially
disrupted the functioning of the UNC System Office or the constituent
institution or substantially interfered with the protected free expression
rights of others may be temporarily or permanently barred from all or part of
the campus along with facing any other criminal charges, as determined by
appropriate law enforcement authorities.
3. Any
individual who disrupts a meeting of a public body, including University
boards, may be temporarily or permanently barred from all or part of the campus
or from future meetings of that public body, and/or may face criminal
charges. If such individual is a student
or faculty member or staff employee of the University, he or she shall also be
subject to discipline according to the appropriate disciplinary procedures for
misconduct by his or her constituent institution even if the disruption occurs
at a meeting of a public body of a constituent institutions other than the
institution which the individual is affiliated.[11]
B. Procedural
Safeguards for Students Involved in Expressive Speech or Conduct Disciplinary
Cases.[12] In all student disciplinary cases where
disciplinary action is proposed for materially and substantially disrupting the
functioning of the UNC System Office, a constituent institution, or any other
entity or unit of the University, or substantially interfering with the
protected free expression rights of others, students are entitled to a
disciplinary hearing under published procedures and Section 700.4.1 of the UNC
Policy Manual, including, at a minimum:
1.
The
right to receive advance written notice of the charges;
2.
The
right to review the evidence in support of the charges;
3.
The
right to confront witnesses against them;
4.
The
right to present a defense;
5.
The
right to call witnesses;
6.
A
decision by an impartial arbiter or panel;
7.
The
right of appeal; and
8.
The
right to active assistance of counsel, consistent with G.S. 116-40.11.
C. Procedural
Safeguards for Faculty Members Involved in Expressive Speech or Conduct
Disciplinary Cases. In all faculty
disciplinary cases where a demotion, suspension, or dismissal is proposed for
materially and substantially disrupting the functioning of the UNC System
Office, a constituent institution, or any other entity or unit of the
University, or substantially interfering with the protected free expression
rights of others, faculty members are entitled to the procedural protections
provided by Sections 603, 604, and 609 of The Code.
D. Procedural
Safeguards for EHRA Non-Faculty Employees Involved in Expressive Speech or
Conduct Disciplinary Cases.[13] In all EHRA non-faculty disciplinary cases
where a demotion, suspension, or dismissal is proposed for disrupting the
functioning of the UNC System Office, a constituent institution, or any other
entity or unit of the University, or substantially interfering with the
protected free expression rights of others, EHRA non-faculty employees are
entitled to the procedural protections provided by Sections 300.1.1 and 300.2.1
of the UNC Policy Manual and any additional protections established by the UNC System
Office or the constituent institution’s relevant disciplinary and grievance
policies.
E. Procedural
Safeguards for SHRA Employees Involved in Expressive Speech or Conduct
Disciplinary Cases. In all SHRA employee
disciplinary cases where a demotion, suspension or dismissal is proposed for
materially and substantially disrupting the functioning of the UNC System
Office, a constituent institution, or any other entity or unit of the
University, or substantially interfering with the protected free expression
rights of others, SHRA employees are entitled to the procedural protections
provided by the University SHRA Employee Grievance Policy and any state or
institutional disciplinary policies.
VIII.
Designation
and Duties of Responsible Officer and/or Office or Department
A.
Designation.
Each constituent institution must
identify the officer(s), office, or department with responsibilities for
ensuring compliance with this policy and Article 36 of Chapter 116 of the North
Carolina General Statutes (“Responsible Officer” or “Responsible Officers”),
and for answering any related questions or concerns from students, faculty
members, staff employees, or others. The
president or a chancellor of a constituent institution may choose to designate
more than one Responsible Officer or to designate a Responsible Officer with
Deputy Responsible Officers in other offices or departments as may best assist
the constituent institution.
B.
Training. Any officer(s) with these responsibilities
will receive training on ensuring compliance.
Such training will be developed and provided by the UNC School of
Government.
C.
Duties. Any officer(s) with these responsibilities
shall be the primary point of contact for any student, faculty member, staff
employee, or other individual’s questions or concerns about compliance with the
law or policy or to assist with interpretation of the law or policy. The Responsible Officer(s) shall also
coordinate any additional campus-based training or educational opportunities
for students, faculty members, staff employees, or others on issues related to
free speech and free expression.
In addition, the Responsible Officer(s) and/or appropriate office or
department also may be designated by the chancellor to be the primary point of
contact for any institutional information requested by the UNC Board of
Governors Committee on Free Expression (Committee on University Governance) to
meet its annual reporting requirements, including information related to:
1.
Any
barriers to or disruptions of free expression within the constituent
institution;
2. The
administrative handling and discipline relating to these disruptions or
barriers, consistent with the federal and state confidentiality protections for
personnel information and student education records;[14]
3. Any
substantial difficulties, controversies, or successes in meeting the
requirements of this policy, as described in section III, above; and
4. Any
assessments, criticisms, commendations, or recommendations the committee sees
fit to include.
Each chancellor
or chancellor’s designee shall notify the senior vice president and general counsel
of the Responsible Officer(s) and/or appropriate office or department and
provide prompt notification of any changes in this designation.
IX.
Other
Matters
A. Effective
Date. The requirements of this policy
shall be effective on the date of adoption by the Board of Governors.
B. Relation to State
Laws. The foregoing policies as adopted
by the Board of Governors are meant to supplement, and do not purport to supplant
or modify, those statutory enactments which may govern the activities of public
officials.
C. Regulations and Guidelines. These policies shall be implemented and
applied in accordance with such regulations and guidelines as may be adopted
from time to time by the president.
[1] Because of the additional protections afforded to
K-12 institutions under the First Amendment, the policy does not apply to the
North Carolina School for Science and Math or to the University of North
Carolina School of the Arts for its high school students or to any lab schools
operated by a constituent institution.
Even so, these institutions are expected to comply with Article 36 of
Chapter 116 to the extent there is not a conflict with relevant First Amendment
jurisprudence applicable to K-12 institutions.
[2] See, e.g., Sections 101.3.1, 300.1.1, 300.2.1, 700.4.2 of the UNC Policy Manual. See also Sections 601, 604, and 608 of The Code.
[3] See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
[4] Section 600(1) of The
Code. See also Section 700.4.2 of
the UNC Policy Manual.
[5] Section 600(3) of The
Code. See also Section 700.4.2 of
the UNC Policy Manual.
[6] Keyishian v. Board of
Regents, State Univ. of N.Y., 385 U.S. 589, 603 (1967).
[7] See Sections
101.3.1, 300.1.1, 300.2.1, 700.4.2 of the UNC Policy Manual. See
also Sections 601, 604, and 608 of The
Code.
[8] Article 36 of Chapter 116 of the North Carolina
General Statutes.
[9] The additional duties of the identified responsible
officer, office, or department are set forth in section VIII of this policy.
[10] Any complaint about an outside disruption or interference should be communicated to the relevant UNC System Office or campus administrator or disciplinary panel for review by the chair of the Board of Governors, the chair of the board of trustees, or the presiding or sponsoring officer of the meeting or event, as appropriate. This expectation does not limit or supersede the UNC System Office’s or the constituent institution’s ability to independently initiate any disciplinary review for a person under their jurisdiction.
[11] Any complaint about an outside disruption or interference should be communicated to the relevant UNC System Office or campus administrator or disciplinary panel for review by the chair of the Board of Governors, the chair of the board of trustees, or the presiding officer of the meeting, as appropriate. This expectation does not limit or supersede the UNC System Office’s or the constituent institution’s ability to independently initiate any disciplinary review.
[12] See also Sections
700.4.1 and 700.4.1.1[R] of the UNC Policy Manual.
[13]
Discontinuation of an at-will position is not considered disciplinary
action under this policy, but may separately be covered by a constituent
institution’s grievance policy.
[14] See 20 U.S.C. § 1232g, 34 C.F.R. pt. 99, and Article 7 of Chapter 126 of the North Carolina General Statutes.