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Free speech and private universities
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Because private colleges have such broad freedom to determine their own policies, and because state laws vary so widely, it is safest to speak of having only “potential” rights on a private campus.
The following selection is excerpted from ֱ’s Guide to Free Speech on Campus.
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 universities are free, within broad legal parameters, 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; civility policies; sweeping “anti-harassment” 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 actually choose to 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 chief 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 disregard of such values).
The university’s interpretation of its handbook is less important than the reasonable expectations of the student.
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 attended 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. 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 ֱ’s Guide to Due Process and Fair Procedure on Campus)
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.
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 less important than the reasonable expectations of the student.
FIRE's Guide to Free Speech on Campus
ֱ has distributed more than 138,000 print and online copies of its Guide to Free Speech on Campus to equip students with the rhetorical and legal tools to stand up for their rights.
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 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 required all persons unconnected with the university to obtain permission before distributing political literature on campus. This ruling, however, certainly did not grant students at private colleges the same rights as those at public universities.
While the Leonard Law and Schmid are important to the 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.
As a legal matter, there is no specific level of federal funding that obligates a private college or institution to honor the First Amendment.
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. The law prohibits deceptive promises that cause the deceived person 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.
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 directly apply. (Exceptions to this rule are military academies, which usually are public and taxpayer-funded, but implement restrictive speech policies that would likely violate a typical public institution’s First Amendment obligations.”
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.
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 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.
Want to learn more about protecting your civil liberties at private universities? Read FIRE's Guide to Free Speech on Campus.