The First Amendment, Social Media and College Admissions

This column by University of Florida Brechner Center for Freedom of Information Director Frank LoMonte originally appeared on Inside Higher Ed on Dec. 13, 2021. Reprinted with permission.

Social media is an empowering leveler for millions of young users. It gives teenagers a vast outlet to connect with faraway peers and exchange ideas on the cultural and political topics of the day. Some have made small fortunes monetizing their creativity on YouTube and Instagram.

But for some teens, social media will also prove to be the difference maker in losing access to a college education because an admissions officer deemed their speech to be offensive or indicative of bad character.

At a state institution, First Amendment guarantees apply to any type of punitive decision. Colleges are recognized, in our culture and in our courts, as places of special solicitude for freedom of speech, where even extreme ideas are meant to be aired and tested without penalty.

When an already-enrolled student at a state college is suspended or expelled for online speech—a not-infrequent occurrence in today’s culture—constitutional safeguards kick in. Students are entitled to a due process hearing and opportunity to appeal, and if the college is found to have discriminated based on a legally protected viewpoint, the student can be compensated for the loss.

But what if the punishment falls on a not-yet-accepted student? What if social media speech is the deciding factor in denying an otherwise-qualified student a seat in a public institution?

We know that this happens, because research tells us that a growing number of institutions are using Google searches and viewing social media profiles as part of the initial admit/don’t-admit decision.

One survey in July 2017, by the American Association of College Registrars and Admissions Officers, found that 11 percent of respondents said they had refused to admit an applicant based on social media content. This includes 8 percent of public institutions, where the First Amendment applies. The survey found that 30 percent of institutions acknowledged reviewing the personal social media accounts of applicants at least some of the time.

That statistic aligns with findings by Kaplan Test Prep, which since 2008 has been surveying admissions officers about the use of social media in admission decisions. In its most recent survey (2020–21), Kaplan reported that 36 percent of admissions officers say they look at applicants’ social media profiles to learn more about them. Of those who do check, 58 percent said the contents had an adverse effect on the applicant.

With all of that information temptingly available on social media pages, surely you’d expect that colleges and universities have rules about what admissions officers can and cannot consider and are training admission officers to obey those rules—wouldn’t you?

With the help of a law student researcher, Courtney Shannon, I set out to find out. We sent 119 requests to the nation’s largest public colleges and universities, asking them to produce any rules, policies, handbooks or training materials addressing the use of social media in admissions.

Shockingly, what we got back was: zero.

Zero out of the 72 institutions that responded said they have any standards that address what can and cannot be considered when admissions officers view social media pages. Of the 72 respondents, 13 of them (18 percent) said affirmatively that they do not consider social media, so no policy was required. That leaves 59 colleges (82 percent of respondents, and half of the original sample) that, presumably, are flying blind. (A full write-up of our findings was recently published in the Hofstra Law Review.)

Our findings align with the findings of the AACRAO in its July 2017 survey. The AACRAO found that just 12 percent of institutions that acknowledge looking at applicants’ social media pages have a formal policy governing how social media figures into the admissions decision, meaning that 88 percent have no policy.

This is a serious problem. Social media can be a revealing window into people’s lives—but, for college admission purposes, perhaps too revealing. A curious admissions officer could find out all manner of information that can’t legitimately be part of a college’s decision and might be prejudicial: the applicant’s political or religious affiliations, gender identity, relationship status, and so on.

If college admissions officers aren’t being trained to disregard legally and constitutionally protected material, young people are at serious risk of capricious—or discriminatory—rejections, which they’ll never find out about and never have the opportunity to challenge.

The First Amendment and the State of College Admissions

Because applicants aren’t generally told why they were rejected, constitutional challenges to admission decisions are rare. In one of the few known court cases, a student who was rejected from a community college’s program in radiation therapy, based partly on statements he made during his admission interview, sued the college, alleging that his First Amendment rights were violated. Although the college acknowledged that the applicant’s interjection of religion into his interview was one factor in the decision, a federal appeals court ruled in 2017 that no constitutional lines were crossed.

An admissions interview is inherently subjective, the Fourth Circuit U.S. Court of Appeals decided. An interviewee’s style and manner of speaking are a legitimate consideration, and a person who gratuitously pushes a religious message in a professional setting might be temperamentally unsuited for the medical field, the court said. But that case, Buxton v. Kurtinitis, does not answer the social media question. Faulting a candidate for using poor judgment in a college admission interview is quite different from faulting a 16-year-old for a failed attempt at humor on TikTok.

It is widely perceived that college admission is a privilege that a state is free to grant or deny at its discretion. But that hasn’t been the law for many decades.

In a 1972 case brought by a Texas college professor who lost his job after criticizing the state Board of Regents, Perry v. Sindermann, the Supreme Court explicitly said that—where the First Amendment is concerned—there is no difference between a “privilege” and a “right.” In other words, even if the professor had no “right” to continued employment and renewal of his contract was discretionary, that still didn’t entitle the state to withhold the “privilege” as punishment for his disfavored political opinions. The same holds true for the “privilege” of college acceptance.

It is also widely argued that the doctrine of academic freedom should give universities total discretion, unreviewable by the courts, to decide who is a suitable candidate for higher education. But even with the benefit of some academic freedom latitude, universities still sometimes get sued and lose when their admission practices violate discrimination laws. So, if statutory guardrails still apply, it strains credulity to insist that the admissions office is a “Constitution-free zone” where anything goes. (Indeed, no one would seriously dispute that some First Amendment standards must apply; no public university could defensibly enforce a “no liberal applicants” or “no conservative applicants” policy.)

The boundaries of college students’ First Amendment rights when they use social media are, to say the least, unclear. Some courts have given state universities a relatively free hand to punish “unprofessional” speech on social media when students are in pre-professional programs, on the grounds that higher education’s job is to help filter unsuitable people out of regulated professions.

But no court has said that the First Amendment disappears when college students go online. And in its most recent student speech case, Mahanoy Area School District v. B.L., the Supreme Court said in June that even a K-12 school should hesitate before disciplining a student for off-campus social media speech about political or religious issues.

This brings us back to the Kaplan Test Prep findings. In the company’s 2015 survey, admissions officers said they check social media for varying reasons. Some are relatively harmless, such as verifying that the students really held the leadership positions they claim. But others are more concerning from a First Amendment standpoint. Some survey respondents said they look for signs of “inappropriate behavior” and that they have flagged applicants’ files for using “vulgarities.”

But “vulgar” speech is fully protected by the First Amendment. One of the Supreme Court’s most famous First Amendment decisions validated the right to wear a “Fuck the Draft” jacket into government buildings, no matter how many onlookers are offended, and lower courts have consistently affirmed the right to direct F-bombs and upraised fingers to police and other government officials.

“Vulgarity policing” is exactly what landed the University of Tennessee in federal court, where a 23-year-old pharmacy student is challenging her expulsion over a series of Instagram and Twitter posts expressing her fandom for rap artist Cardi B’s R-rated anthem “WAP,” which contains explicit references to sex.

Using social media speech as a shorthand for “unsuitable character” is fraught business. People using Twitter and Instagram speak ironically, exchange inside jokes and use cultural shorthand that may be lost in translation to a middle-aged admissions officer. Consider the tragic case of Justin Carter, a Texas teenager who was held in jail for half a year and prosecuted for terroristic threats because his Facebook speech about playing a violent video game was mistaken for a plot to commit real-world shootings.

Because, as is so often observed, “Twitter is not real life,” admissions officers need clear and well-enforced standards to guard against misjudgments that undeservedly cost young people a shot at educational and professional betterment.

A ‘Right to Disclosure’ in Admissions?

It’s disturbing when a person like Tennessee pharmacy student Kimberly Diei is punished for benign fun on social media—but at least Diei had notice of why she was expelled and an opportunity to dispute the decision. For a 17-year-old college applicant who receives the standard “we regret to inform you” form rejection, there is no such opportunity.

There should be. If social media speech is decisive in rejecting an otherwise-qualified applicant, the applicant should have the opportunity to explain what might—as in Justin Carter’s case—be nothing more than a contextual misreading.

There is precedent in federal law for giving such second chances when life-changing decisions are made based on information that is known to have reliability problems. In 1974, Congress passed the Equal Credit Opportunity Act to address discrimination in lending. ECOA requires lenders to explain specifically why they’ve denied an application for credit, which gives the borrower a chance to address any misinformation, such as an error in a credit report.

Even closer to home, there is precedent in the educational setting for the right to see and correct an erroneous record. It’s the Family Educational Rights and Privacy Act, which entitles students to inspect their own education records and, if the records are incomplete or misleading, to insert the corrective material of their choice. If a correction is refused, then the student is entitled to an appeal hearing.

In other words, the mechanism already exists for fixing misunderstandings that can have outsize negative effects on people’s futures. If there is a right to an explanation for being denied a car loan, there should be a comparable right for the far more consequential decision of being denied a college education.

If colleges aren’t interested in providing that explanation, then they can do what a majority of institutions already say they do: stop using the known unreliable indicator of social media as a consideration in admissions decisions at all.

Posted: December 13, 2021
Tagged as: Brechner Center for Freedom of Information, College Admissions, Frank LoMonte, Social Media