The COVID-19 pandemic exposed the power that public university speech policies have to silence students. Although few people were better suited to provide a candid assessment to the media of student safety in on-campus housing than resident assistants, all too often these student employees were forbidden from speaking openly, or at all. To understand the scope of these prohibitions on speech, researchers using freedom-of-information law obtained employment manuals, policies, and guidelines from a wide cross-section of public universities. This Article analyzes the language used in a sample of these materials and concludes that while these speech policies often - and rightly - protect sensitive, confidential information that resident assistants learn on the job, they also indiscriminately sweep across a great deal of protected speech. As a result, access to information of public concern is restricted. This "gagging" phenomenon is amplified by the outsized coercive effect that even less-restrictive policies are likely to have on a resident assistant's speech. After all, speaking in a disfavored way may result in not only the loss of a paycheck, but of the roof over the student’s head. With this in hand, the Article reviews the courts’ treatment of the First Amendment rights of both public employees and public-school students in challenges to state action in this area. This Article predicts that whether analyzed under the Supreme Court’s “employee” or “student” jurisprudence, many - if not most - of the speech policies typified in the sample probably flunk the test of First Amendment protection, given that more narrowly tailored options are available.
Frank D. LoMonte and Conner Mitchell, A Room Without a View(point): Must Student-Housing Employees Trade Free Speech for Free Rent?, 45 Campbell L. Rev. 147 (2023).