Free Speech Rights On Private College Campuses

Details

Written by FIRE: Harvey A. Silverglate, David French, Greg Lukianoff

Free Speech and the Private University

So far, this Guide has focused above all on the First Amendment and its application to public universities, but it is vitally important to understand both what the Constitution does and does not protect. The First Amendment of the Constitution of the United States protects individual freedoms from government interference. It does not, as a rule, protect individual freedoms from interference by private organizations, such as corporations or private universities. For example, while the government could never insist upon allegiance to any particular political philosophy or any particular church, private organizations often make such allegiance a condition of employment (the local Democratic Party, for example, is obviously free to require its employees to be registered Democrats, and the Catholic Church is obviously wholly free to employ only Catholics as its priests). Private organizations such as political parties and churches have freedoms denied to government -- the freedom to violate liberties that would be constitutionally protected if the issue were government interference. Indeed, the Constitution protects the free exercise of those liberties because we could not have a free and pluralistic society if private organizations did not enjoy this freedom of association around shared beliefs and practices.

Private universities, then, are free, within the law, to define their own missions, and some choose to restrict academic freedom on behalf of this or that religious or particular agenda. Most private, secular colleges and universities (and a vast number of private church-affiliated campuses) once prided themselves, however, on being special havens for free expression -- religious, political, and cultural. In fact, many of America's most respected private educational institutions have traditionally chosen to allow greater freedoms than public universities, protecting far more than the Constitution requires and permitting forms of expression that public universities could legally prohibit. Until recently, few places in America allowed more discussion, more varied student groups, and more provocative and free expression than America's celebrated private campuses.

Unfortunately, that circumstance has changed. Even some of America's most elite private, secular, and liberal arts colleges and universities are centers of censorship and repression. They have created a wide array of barriers to unfettered discourse and discussion: speech codes; sweeping "antiharassment" regulations; wildly restrictive email regulations; broadly defined bans on "disruptive" speech; overreaching and vague antidiscrimination policies that sharply restrict the expression of ideas and beliefs by unpopular religious and political groups; and absurdly small and unreasonable "free speech zones".

Liberal arts institutions that advertise themselves as welcoming the fullest pluralism and debate too often have little time, patience, or tolerance for students who dissent from the political assumptions of the institution. Unlike many schools that openly declare a religious or other particular mission, most secular, liberal arts institutions still present themselves to the public as intellectually diverse institutions dedicated to the free exchange of ideas. They should be held to that standard. Indeed, the vulnerability of college administrators at campuses is precisely the gulf between their public self-presentation (in which they claim to support academic freedom, free speech, and the protection of individual conscience) and their actual practice (which too often shows a flagrant disregard of such values). If a private college openly stated in its catalogue that it would tolerate only a limited number of "correct" viewpoints, and that it would assign rights unequally (or deny them entirely) to campus dissenters, then students who attend such schools would have given their informed, voluntary consent to such restrictions on their rights. It is likely, of course, that fewer students would choose to attend (and fewer freedom-loving philanthropists choose to support) a private school that offered fewer freedoms than the local community college.

To prevail in the battle for free speech and expression, the victims of selective (and selectively enforced) speech codes and double standards at private colleges and universities need to understand several relevant legal doctrines, and the moral bases that underlie them. These include basic contract law, which requires people, businesses, and institutions (such as universities) to live up to the promises they make. Morally, of course, the underlying principle is that decent individuals and associations keep their promises, especially when they receive something in return for those promises. Legally, doctrines such as contractual obligations may vary from state to state, but many common principles exist to provide some general guidance for students. For those who treasure liberty, the law can still provide a powerful refuge (although publicity may sometimes be as powerful, because university officials are hard pressed to admit and justify in public what they believe and do in private). The strength of that legal refuge depends on many factors: the laws of the individual state in which the university is located; the promises made or implied by university brochures, catalogues, handbooks, and disciplinary rules; and the precise governance and funding of the institution. To some extent, however, and in most states, private universities are obliged in some manner to adhere at least broadly to promises they make to incoming students about what kinds of institutions they are. There is a limit, in other words, to "bait-and-switch" techniques that promise academic freedom and legal equality but deliver authoritarian and selective censorship. A car dealer may not promise a six-cylinder engine but deliver only four cylinders. Unfortunately, the equivalent of such crude bait-and-switch false advertising and failure to deliver on real promises is all too common in American higher education.

Individual State Laws Affecting Private Institutions

In America, legal rights can vary dramatically from state to state. The United States Constitution, however, limits the extent to which any state may regulate private universities, because the Bill of Rights (which applies both to the states and to the federal government) protects private institutions from excessive government interference. In particular, the First Amendment protects the academic freedom of colleges and universities at least as much as (and frequently more than) it protects that of the individuals at those institutions.

Fortunately, decent societies have historically found ways to protect individuals from indecent behavior. State law often reflects those traditions of decency, making it particularly relevant to how a university may apply its policies and how government officials may behave toward students (and faculty). Many states follow doctrines from the common law, which evolved as the foundation of most of our states' legal systems. For example, some states have formulated common-law rules for associations -- which include private universities -- that prohibit "arbitrary and capricious" decision making and that require organizations, at an absolute minimum, to follow their own rules and to deal in good faith with their members. These standards can provide a profoundly valuable defense of liberty in the politically supercharged environment of the modern campus, where discipline without notice or hearing is all too common. (For more information about how to combat the lack of due process on university campuses, see also FIRE's Guide to Due Process and Fair Procedure on Campus, available at www.fireguides.org.)

In most states, court decisions have established that school policies, student handbooks, and other documents represent a contract between the college or university and the student. In other words, universities must deliver the rights they promise. Most campuses explicitly promise a high level of free speech and academic freedom, and some (including some of the most repressive in actual practice) do so in ringing language that would lead one to believe that they will protect their students' rights well beyond even constitutional requirements.

Since universities have the power to rewrite these contracts unilaterally, courts, to help achieve fairness, typically will interpret the rules in a student handbook or in other policies with an eye toward what meaning the school should reasonably expect students or parents to see in them. As a consequence, the university's interpretation of its handbook is much less important than the reasonable expectations of the student.

It is not uncommon for groups of students or for individuals who deviate from campus orthodoxies to be railroaded off campus. Campus officials or campus judicial boards might hold closed, late-night meetings, or they might not inform accused students or groups of the charges against them. Frequently, dissenters are victims of selective prosecution and sentencing: Although other individuals have committed the same offense, or other groups have the same policies, only individuals or groups with viewpoints that are out of favor will be prosecuted. In such cases, the prosecuted individual or group may have legal means to force the university to employ sound procedures in a fair and equitable way.

Importantly, some states have statutes (or state constitutional provisions) that provide students at private schools with some measure of free speech rights. For example, California's so-called "Leonard Law" (more technically, Section 94367 of California's Education Code) states that "no private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that . . . is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution".

In other words, students at California's private, secular colleges and universities (the Leonard Law does not to apply to students at religious colleges) enjoy the same level of free speech rights as students at California's public colleges. Other states, while not protecting students' rights to the same extent that California does, have ruled that private universities may not make blanket rules restricting speech. In the vital case of State of New Jersey v. Schmid (1980), the New Jersey Supreme Court ruled that a state constitutional guarantee -- that "every person may freely speak...on all subjects" -- prevents Princeton University (even though a private school) from enforcing a comprehensive rule that requires all persons unconnected with the university to obtain permission before distributing political literature on campus. This ruling, however, certainly did notgrant students at private colleges the same rights as those at public universities.

While the Leonard Law and Schmid are important to discussion of free speech at private campuses, students should not conclude that similar statutes or cases exist in the majority of states. In fact, far more states have rejected claims of rights to freedom of expression on privately owned property than have accepted such claims.

Beyond rights that are protected explicitly by contract or by statute, however, state law provides common-law rules against misrepresentation. Simply put, there is a long tradition of laws against fraud and deceit. Very often, a university's recruiting materials, brochures, and even its "admitted student" orientations -- which are designed to entice a student to attend that institution rather than another -- will loudly advertise the institution's commitment to "diversity", "academic freedom", "inclusion", and "tolerance". Students will be assured that they will be "welcomed" or find a "home" on campus, regardless of their background, religion, or political viewpoint. Promises such as these will often lead students to turn down opportunities (and even scholarships) at other schools and to enroll in the private secular university. If these promises of "tolerance" or of an equal place in the community later turn out to be demonstrably false, a university could find itself in some legal jeopardy. While private universities may be rightfully beyond the reach of the Constitution, they remain part of a decent society of laws, and they have no license to deceive with false promises. The law prohibits deceptive promises that cause the person deceived to sign a contract, and such prohibitions against false advertising can be used in a quite credible effort to force a change in an administration's behavior. As noted, our colleges and universities should honor their promises. That is good ethics, and that is good law.

There is a final source of possible legal protection for a student at a private university, although it involves a particularly difficult legal and political question: When does the extent of the government's involvement in the financing and governance of a self-proclaimed "private" college make it "public"? If that involvement goes beyond a certain point, it is possible that the institution will be found, for legal purposes, to be "public", and in that case all constitutional protections will apply. This happened, for example, at the University of Pittsburgh and at Temple University, both in Pennsylvania. State laws there require that, in return for significant public funding, a certain number of state officials must serve on the universities' boards. That fact led these formerly "private" campuses to be treated, legally, as "public". Nonetheless, this is a very rare occurrence, and the odds of any private school being deemed legally public are very slim. Unless a school is officially public, one should always assume that the First Amendment does not apply.

There are many students, faculty members, and even lawyers who believe, wholly erroneously, that if a college receives any federal or state funding it is therefore "public". In fact, accepting governmental funds usually makes the university subject only to the conditions -- sometimes broad, sometimes narrow -- explicitly attached to those specific programs to which the public funds are directed. (The most prominent conditions attached to all federal funding are nondiscrimination on the basis of race and sex.) Furthermore, the "strings" attached to virtually all federal grants are not always helpful to the cause of liberty, which needs a certain breathing room away from the government's interference. This is one reason why people who worry about excessive government power are often opposed to governmental funding of private colleges and schools.

As a legal matter, there is no specific level of federal funding that obligates a private college or institution to honor the First Amendment. Many factors, such as university governance, the appointment of trustees, and specific acts of legislation, need to be weighed in determining the status of any given institution. That should not stop students, however, from learning as much as they can about the funding and governance of their institution. There are moral and political questions that arise from such knowledge, beyond the legal issues. Do the taxpayers truly want to subsidize assaults on basic free speech and First Amendment freedoms? Do members of the Board of Trustees truly want to be party to such assaults? Do donors want to pay for an attack on a right that most Americans hold so dear? Information about funding and governance is vital and useful. For example, students may find that a major charitable foundation or corporation contributes a substantial amount of funds to their college, and they may inform that foundation or corporation about how the university selectively abuses the rights and consciences of its students. Colleges are extremely sensitive to contributors learning about official injustice at the institutions that those donors support. This is another example of our most general principle: Colleges and universities must be accountable for their actions.

Protecting Your Freedom at the Private University: Practical Steps

When applying to a private college or university, students should ask for its specific policies on free speech, academic freedom, and legal equality, and they should do research on the schools to which they are applying, starting at FIRE's database on restrictions of student speech, at www.speechcodes.org. Once at an institution of higher learning, individuals who find themselves subjected to disciplinary action (or in fear of disciplinary action) should immediately look very closely at the college's or university's own promotional materials, brochures, and websites. If you are such a student, read carefully the cases cited in the Appendix to this Guide, so that you can better understand the extent of your rights.

Embattled students should take care to recollect (and to confirm with others) any specific conversations they may have had with university officials regarding free speech and expression. If those promises or inducements are clear enough, then a court may well hold the university to its word. This is an area of law, however, with many variations and much unpredictability. Some courts have given colleges vast leeway in interpreting and following their own internal policies and promises, and in some states, therefore, a college will be held only to what lawyers call "general" -- as opposed to "strict" -- adherence to its own rules. Still, the general rule remains: If a university has stated a policy in writing, a court will require the university to adhere to that policy, at least in broad terms.

Regardless of the level of legal protection enjoyed by students at any given private university, they should not be reluctant to publicize the university's oppressive actions. Campus oppression is often so alien and outrageous to average citizens outside the university that university officials -- unwilling or unable to "justify" their shameless actions to alumni, donors, the media, and prospective students -- find it easier to do the right thing than stubbornly to defend the wrong thing. Again and again, FIRE has won victories without resorting to litigation simply by reminding campus officials of their moral obligation to respect basic rights of free speech and expression, and by explaining to them what the public debate about such obligations would look like. A brief visit to FIRE's website, www.thefire.org, demonstrates how public exposure can be decisive, and many cases never appear on the website because an administration will back down at the first inquiries about its unjust or repressive actions. As a result of FIRE's intervention, university policies have been changed, professors' jobs have been preserved, student clubs have been recognized, and, above all, students' individual rights, moral and legal -- including freedom of speech -- have been saved or expanded. Do not be fatalistic, and do not feel alone. Liberty is a wonderful thing for which to fight, and there are many voices in the larger society, across the political spectrum, who understand the precious value of freedom of expression.

University officials are all too aware of the devastating impact of public exposure on authoritarian campuses. As a result, they will often be desperate to prevent embattled students from going public. Students who fight oppressive rulings are often admonished (in paternalistic tones) to keep the dispute "inside the community" or are told that "no one wants to get outsiders involved". Unless you are absolutely certain that private discussions will bear fruit, do not take this "advice". Very often, public debate is the most powerful weapon in your arsenal. Do not lay down your arms before you even have an opportunity to defend yourself and your rights.

Summary of Free Speech Rights on Private Campuses

Because private colleges have such broad freedom to determine their own policies, and because state laws vary so widely, it is safest to speak only of having "potential" rights on a private campus. However, the following generalizations can be made with a certain degree of confidence, unless you have given informed consent to (you have knowingly agreed to) the terms of a voluntary association (generally a group, club, or organization) of which you have chosen to be part (in which case you have waived the rights that you knowingly agreed to waive):

1. You have the right to rational disciplinary proceedings that are not arbitrary and, to a lesser extent, to rational, nonarbitrary results.
2. You have the right to receive treatment equal to that received by those who have engaged in similar behavior.
3. You have the right to honesty and "good faith" (generally defined as conformity with the basic, human standards of honesty and decency) from university officials.
4. You have the right to enjoy, at least in substantial degree, all of the rights promised you by university catalogues, handbooks, websites, and disciplinary codes.

Know Your Censors and Your Rights

While methods of censorship are limited only by the creativity of the censors, most campus efforts to suppress what should be protected speech follow several obvious patterns. Universities typically attempt to control or limit student rights through what lawyers call "compelling" speech (forcing individuals to say things they otherwise might choose not to say) or, closely related, by requiring some form of stated agreement with the political and ideological views of administrators and members of the faculty. This is almost always undertaken through vague or overbroad rules. Often, our colleges and universities abuse legitimate laws and regulations in order to punish, unlawfully or immorally, unpopular viewpoints. Often, they impose what are known as "prior restraints", that is, rules that silence speech before it can be uttered (rather than deal with it afterward). Often, our campuses abuse "hate speech" or "harassment" regulations in wholly illegitimate ways.

If students intend to protect their rights, they need to understand the nature of the oppression that others would impose on them. Just as a doctor needs a diagnosis before prescribing a medication, students need to identify the unconstitutional restrictions they face before bringing the correct arguments to bear. The insight that "knowledge is power" applies very much to constitutional law. You should never assume that university officials either know or have considered the law -- even if the official in question is a lawyer. In FIRE's experience, few university lawyers have more than a passing knowledge of the First Amendment. Students would be well advised to consult (and well instructed by consulting) the specific and helpfully indexed First Amendment library at www.firstamendmentcenter.org. By defining the terms of the debate -- and the doctrine that actually applies to a problem -- students and their supporters can win battles for their basic human and constitutional rights at the very start.

The Student Press and Prior Restraint

Some public universities have policies that require all student newspapers to be submitted to an advisor before they are published. Federal (and state) court decisions strongly suggest that this practice is unconstitutional. Furthermore, if these policies give any member of the administration of a public university the right to edit content on the basis of viewpoint -- either explicitly or in practice -- then such policies will almost certainly be struck down in a court of law.

Censors may attempt to justify prepublication review by citing a case discussed previously in this Guide, Hazelwood School District v. Kuhlmeier (1988). As you will recall, Hazelwood limited the rights of high school journalism students who printed a school newspaper as part of a journalism class. The Court ruled that, under those circumstances, the school could regulate so-called "school sponsored" speech (the administration acting, in effect, as the publisher) as long as the regulation was related to "reasonable pedagogical concerns." Thus far, however, the courts have not applied Hazelwood to university newspapers, and, indeed, cases decided before Hazelwood already had made it quite clear that prepublication review is impermissible.

FIRE's position is that colleges and universities should never seek editorial control over student newspapers. Further, the law does not allow them to rely on high school procedures to institute college censorship. The attempted application of Hazelwood to colleges is both legally incorrect and morally wrong. Even at private universities, if a school's newspaper is run by students, university officials should neither want nor use the power to review each issue before it goes to print. Student media play an important role in educating and bringing issues to the campus community. Universities that do not allow a free student press deprive the campus community of an important component of the open discussion, debate, and expression that universities exist to foster.

• < Prev
• Next >