Free Speech Rights On Private College Campuses

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

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.

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