Academic journal article Journal of Law and Education

Free Speech at Private Universities

Academic journal article Journal of Law and Education

Free Speech at Private Universities

Article excerpt

I. INTRODUCTION

The vast majority of universities in the United States promote themselves as institutions of free speech and thought, construing censorship as antipathetic to their search for knowledge. Their handbooks and policies declare that students and faculty have the right of free speech,' but surprisingly, most of those same colleges also have policies that explicitly restrict speech. University handbooks commonly contain policies that prohibit offensive and uncivil speech, require administrative approval of flyers and publications, or cordon public speech to a small area of the campus.2 At public colleges, the First Amendment solves the conflict between a university's policies promising free speech and its speech-restrictive policies by rendering the speech-restrictive policies unconstitutional.3 Private colleges, on the other hand, are not state actors, and thus, the First Amendment does not stop them from enacting speech-restrictive policies.4

Congress recently passed an aspirational resolution stating that "an institution of higher education should facilitate the free and open exchange of ideas," but this aspiration does not legally bind private universities-it merely expresses Congress's opinion on what the nation's universities ought to do.5 In contrast, California's Leonard Law6 requires that all private, nonsectarian universities follow the dictates of the First Amendment and, therefore, refrain from restricting any speech that would be protected on a public campus.7

The Leonard Law solves the conflict between speech-protective and speech-restrictive policies by imposing the principle of free speech on all nonsectarian universities. Though this vindicates the liberal ideal of free speech, it impinges on a different liberal ideal- the right to private association.8 The Leonard Law prohibits private, nonsectarian universities from designing their programs in a way that restricts free speech in favor of other values of their choosing, which as private institutions, they should presumptively have the right to do.9 In its aspirational resolution that urged institutions of higher education to allow free speech, Congress also noted, without offering any particular reconciliation, that its endorsement of free speech on university campuses should not be interpreted in a way that infringes on constitutional rights of association.10

To address the conflict of policies at private universities, contract law offers the best solution because it can protect the liberal ideal of universities as free speech institutions without sacrificing the right of private association. Courts have grappled with how to adjudicate legal disputes between students and private universities, but most courts that have addressed the issue have, at least in part, relied on a contractual paradigm, with the student handbooks and codes constituting an implied part of that contract.11

Further, the interpretation of conflicting policies should be guided by the reasonable expectations of the student. The majority of higher education institutions in America are liberal arts or research colleges,12 which generally foster free speech and thought. This practice arises from the long-standing liberal belief that allowing people to speak, debate, and discuss freely is more conducive to the acquisition of knowledge than top-down censorship.13 As a result of America's strong commitment to free speech and the widely accepted understanding that institutions of higher education function as society's premier seekers of knowledge, a reasonable student would expect to have the ability to speak freely on a liberal arts or research campus. Thus, when a liberal arts or research college enacts both speech-protective and speech-restrictive policies, courts should interpret the contract as protecting free speech. This solution preserves free speech on most of America's campuses but leaves private universities the option of repudiating that expectation should they choose to clearly and publicly prioritize other values, such as protecting minorities from hate speech. …

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