Ohio State University (OSU) has put a ban on students hanging anything in their dorm room windows, in what an OSU emeritus law professor has called a violation of the First Amendment.
The rule was outlined in a section on "apartment furnishings" in the 2017-2018 Residential Living Handbook, stating: "Windows must remain clear from obstruction and university window coverings need to be visible from the outside. Posting, hanging or otherwise displaying signage, lighting, or other materials in or around the residence hall windows or on university window coverings is not permitted."
University residence hall staffers will be charged with enforcing the prohibition, according to school paper the Lantern.
David Goldberger, a former constitutional law professor at OSU's Moritz College of Law, told the Washington Free Beacon he believes the rule treads on students' freedom of expression.
Goldberger pointed to a 1969 U.S. Supreme Court case, Tinker v. Des Moines Independent Community School District, which determined that high school students could not be prohibited from wearing anti-war armbands in school, unless it would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."
"State university students have more first amendment protection than high school students," he said. "So far as I know, the sign ban on state university dorm windows has not been decided definitively by the courts, but in my view signs containing statements of opinion fall comfortably within Tinker when considered in a university context."
"A campus is supposed to be a place where all manner of viewpoints can be expressed," Goldberger added. "University students aren't children."
David Isaacs, a spokesman for the Office of Student Life, stood behind the ban, framing it as part of an annual review of the dorm handbook.
"[OSU] benchmarked other schools' guidelines and have found this to be a common approach to windows and window coverings. The university maintains the discretion and right to determine use of windows, walls, doors, and other university spaces," he said.
Isaacs added, "Ohio State has a deep and abiding commitment to free speech. As with other rules and regulations that address university spaces, the rules within the Residential Living Handbook are consistent with the First Amendment."
Isaacs last year touted students' window art in an interview with the Lantern, saying, "I am continually impressed by the creativity of Ohio State students. Although, we do hope that our students use this unique feature to highlight messages that are positive and not offensive or in poor taste."
In comments to the student paper, Goldberger said a "flat-out ban is probably more than [the administration] can do," but there may be legitimacy to constraints on "racist or inappropriate messages that would … interfere with an educational environment."
Daniel P. Tokaji—OSU's Charles W. Ebersold and Florence Whitcomb Ebersold professor of constitutional law—took the opposite view, telling the Free Beacon that if the administration were brought to court on the issue, "[a] content-based restriction on speech—for example, a ban on derogatory or even hateful speech—would be more difficult to defend than a flat prohibition."
"One of the central concerns of the First Amendment is government discriminating on the basis of the message the speaker wishes to express. So in this sense, a broader ban may be easier to defend than a more targeted one would be," said Tokaji.
"There's certainly a First Amendment issue, because the new rule effectively restricts expression. Whether it violates the First Amendment is a more difficult question," he said.
The University of New Mexico (UNM) has similar residence hall rules, which state students "may not hang/display any banners from [the] balcony," and room decorations must be in the "interior of [the] room and may not extend into public spaces."
A UNM student was instructed in 2015 to remove an American flag from his dorm room window, with a spokesperson saying "a window is considered 'public space.'"
Published under: First Amendment