BY JOHN K. WILSON
Fifty years ago, on June 26, 1972, the US Supreme Court issued one of the most important rulings protecting free speech on campus in the case of Healy v. James. As the conservative Supreme Court has proven this week, even a fifty-year precedent is not safe if five justices decide to trash it. But Healy v. James, decided by a unanimous court, seems today to remain a unanimous viewpoint. The conservatives who have worked so hard to annihilate abortion rights see Healy as a precedent that protects the rights of conservatives, and so it remains safe.
That’s a strange result for a case that defends the rights of a radical leftist group. In Healy v. James, Central Connecticut State College refused to recognize a student chapter of Students for a Democratic Society (SDS). This wasn’t a shocking decision considering that the national SDS organization had effectively been destroyed and one radical faction turned into a violent terrorist group, the Weather Underground, whose members occupied the FBI’s Most Wanted list. One month before the Supreme Court’s ruling in Healy, the Weather Underground exploded a bomb at the Pentagon, which happened one year after another bomb blew up in the US Capitol. In 1972, SDS was widely regarded as a terrorist group.
Daniel Silver, a law student who helped his father defend the students, discussed the case in a 2016 interview: “Central’s SDS group held meetings, and they were ordered by the dean of students not to meet. They couldn’t stay on campus. They were not allowed to participate in any kind of extracurricular activity on campus because of [their ties to] the national name. That they were a dangerous organization. And they were completely prevented from organizing on the Central campus.”
Why was the ruling unanimous? The state of Connecticut explicitly argued that if any three student members of SDS were seen together anywhere on campus for any reason, they would be ordered to disband. This kind of casual authoritarianism shocked the court so much that even William Rehnquist agreed with the result, although he authored a lone concurrence urging more deference to administrators. For the other eight justices, though, the Healy case was a strong stand that public universities must strictly adhere to the First Amendment, that banning a student group was a form of prior restraint that required extraordinary justification only when the students are shown to “infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.”
Silver noted how close the case came to being dismissed for mootness. It was only because Catherine Healy happened to be taking one night class when the case was being argued that it was allowed to continue at all (an ongoing problem for defending the rights of students).
The legacy of Healy remains. In the 2010 case of Christian Legal Society v. Martinez, the Court by a 5-4 margin upheld an “all-comers” policy that banned anti-gay discrimination in choosing leaders of student groups. The conservative dissenters embraced the Healy precedent (as protecting even discriminatory rules), as did the then sort-of-liberal majority which noted Healy’s exceptions for neutral campus rules on student groups. But no justice has rejected the fundamental rights protected by Healy, which have stood for fifty years without dissent. Fortunately, the conservative delusion that only leftists censor people on campus may be the leading factor protecting the rights of student groups. When the justices perceive a right as protecting their side, and standing to defend their ideology, they are resolute in its existence.
The Healy ruling created some potential loopholes that administrators have sometimes tried to exploit in order to justify repression. Reasonable “time, place, and manner restrictions” in the case have been distorted by administrators who think they should be able to dictate time, place, and manner for protests with free speech zones. Other administrators have tried to ban student groups based on the belief they would be harmful in some way, or unnecessary. Courts have almost uniformly struck down these bans, but the attempts at censorship persist. David Horowitz has called for bans on Students for Justice in Palestine chapters, while some leftists occasionally seek to prohibit Turning Point USA chapters.
In the Healy case, SDS in 1972 was far from just another expressive group. But the First Amendment protects the right of students to organize groups even when they are deeply unpopular, and even when there is a legitimate concern about potential violence.
The Healy ruling is an essential precedent for protecting the rights of student groups, but it has had an even wider impact in establishing colleges as a “marketplace of ideas” protecting everyone on campus.
John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement, and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies.
