Free Speech Rights On Private College Campuses

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.