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As colleges and universities determine ways to track and prevent the spread of COVID-19, there are bound to be missteps. But Montana State University’s policy forcing student organizations to hand over their event attendee lists to administrators — even in the absence of a single positive case of the virus — is less of a minor misstep and more of a First Amendment fumble.

FIRE to MSU today urging it to resist the temptation to unnecessarily abridge constitutional rights and to amend its misguided policy. 

A clear policy problem — with unintended consequences

On July 29, an administrator informed student organization leaders that as part of MSU’s COVID-19 protocol all student clubs and organizations “are required to track attendance at events, including closed meetings.” This mandatory attendance would be taken via two apps maintained by the university. MSU did not disclose the existence of any policy limiting the purposes for which administrators may access the attendee lists or how long lists will be stored.

The First Amendment protects not only the right to speak publicly, but also the right to speak anonymously.

As a public institution, MSU is required to uphold students’ constitutional rights. The First Amendment protects not only the right to speak publicly, but also the right to speak anonymously. 

There’s also a moral imperative here: Consider the student facing depression or battling alcoholism who wants to attend a campus support group, or a student in the closet who wants to attend an LGBT event. This policy could reasonably stop any of these students from seeking help if they did not want to be on a university’s list of their activities. 

But it doesn’t have to be this way.

Institutions can take reasonable steps — without overstepping

Universities may require organizations to take reasonable steps to keep students safe during the pandemic. There is a compelling interest in protecting student health, but that interest does not justify requiring students to disclose attendance records from all student organization-sponsored events, nor to maintain such records longer than necessary to meet the needs of contract-tracers. MSU must immediately rescind and replace the policy with one that is both substantially related to, and a less restrictive means of, promoting COVID-19 prevention and tracking on campus.

It can be tempting to give up basic constitutional rights in the face of a crisis. As we all work to combat a global pandemic and institutions craft policies to address campus public health, we must remember the competing issues of individual rights versus public safety. This is one example where the tradeoff is not justified. And once we hand over those rights, we rarely get them back.