Free Speech on Campus: A Constitutional Void

By Eric Segall

It is rare that a week goes by without some major public controversy involving free speech at a public or private university. In Florida, Governor Ron DeSantis wants to essentially purge public universities of honest discussions of race, diversity, gender, LGBTQ+ issues, and America's past. So far, courts have said no. 

At Stanford last week, Judge Kyle Duncan was greeted with much hostility, which he seemed to invite, resulting in videos showing him calling Stanford Law students "idiots" and then running off to cry to the media about how he was treated. This incident, widely reported on, has many causes and there's plenty of blame on all sides.

Both public and private universities have controversial hate speech codes that many scholars and judges think are either unconstitutional or bad policy because they go beyond punishing true threats or harassment, while others believe such codes are essential to protect traditionally marginalized groups. 

Off campus online speech by university students has haunted the lower courts, which have reached all kinds of varying and conflicting results. Swirling around all these controversies are under-theorized free speech arguments leading to great constitutional uncertainty.

I have strong free-speech policy views about how colleges and universities should be operated, but this is a blog post about what the first amendment requires, not what policies are best. Even so, my goal is not to present a coherent, worked-out theory of the first amendment on campus. Instead, I want to ask a few hard questions and suggest that the label "academic freedom" does little to clarify many of these disputes. At the end of the day, much more work needs to be done by lawyers, scholars, university officials, and judges to bring much needed coherence to this area of the law. 

One thing we can all agree on is that the first amendment does not apply of its own force to private colleges and universities because they are not government actors. Some private schools have bound themselves to the mast by saying they will abide by the first amendment even though they are not required to do so. But any cases brought against private universities would have to rely on the voluntarily adopted free speech codes (perhaps rendered enforceable by contract). Because of the lack of state action, and thus the inapplicability of the Constitution to private institutions of higher learning, this post is devoted to how the first amendment applies to public colleges and universities.

The most difficult question that arises when academic freedom and free speech rights are pitted against other priorities, such as protecting minority groups or preventing campus disruption, is how to balance complex and often conflicting values. 

Let's start with two easy cases. Students have no right to disrupt classes through speech. If I am teaching a class on the 14th Amendment, students have no right to discuss any topic of their choice. If they try, they can be removed. Easy.

Neither students nor professors at public universities have the right to target and harass other students, faculty, or anyone else on campus even through pure speech. What constitutes harassment or true threats may pose difficult factual questions, and the Court will decide this term whether the standard is an objective or subjective one. But real threats and actual harassment are simply not protected by the first amendment.

Now on to some harder cases. There has been a robust public debate for years over whether university professors should use the "N-word" in class if it appears in the original source material or for other legitimate pedagogical reasons. Eugene Volokh and I discussed this issue at length on my podcast, and Geoff Stone, among others, recently changed his mind about whether it is appropriate to ever use the word (his new answer is no). Of course, we all agree that neither faculty nor students can use the word as an insult or invective without punishment if it is addressed directly to specific individuals or groups.

But who has the final say on this question? May a public university discipline a professor for using the "N-word" for any reason? May a public university simply announce that the word may not be used on campus ever? Could a law school dean require the use of the word if it is in the original materials and the dean deems it important enough? May a state legislature pass a rule about the proper use of the term? Or does the decision whether to use the word reside solely with the professor?  These are truly hard questions for the reasons below.

The history of first amendment litigation in this country is the formulation by the Supreme Court of a complex set of rules and doctrines governing speech in different contexts. We have public forum analysis, government speech analysis, time, place, and manner restrictions, and of course the almost total ban on viewpoint discrimination and the presumed unconstitutionality of most content-based restrictions. Given all of these different tests for different contexts, we should not just assume the first amendment binds the government as educator in the same way it binds the government as a regulator or taxer. 

I use the Sullivan & Feldman casebook for constitutional law. Georgia State is a public school. Could my university require me to use a different book? I think the answer is probably yes. If I am right, could my university dictate the cases that I teach out of that book? Obviously that would be bad policy but is it unconstitutional? I don't think so.

There are some good reasons to think the first amendment may not limit university officials in the ways many people assume. If the taxpayers of a state or school leaders want instructors at a public university to never use the N-word or to use it if pedagogically legitimate, why do students or teachers have a right to challenge that decision? Or, as in the case of Florida, if the powers that be want to prescribe odious rules for campus learning and behavior, even viewpoint-based rules, why should the first amendment prohibit that specific exercise of state power? The usual response to all this is the invocation of academic freedom, but who owns that freedom? It is widely assumed that students and faculty have speech rights that trump the official decisions of university policy makers but why that may be so on our nation's campuses is under-theorized.

Cutting in the other direction, of course, are strong policy arguments that university professors should have free speech rights and be allowed to teach and engage in scholarship in any way that is pedagogically sound. But who decides whether a particular decision by a professor meets that standard? It is far from clear to me that the only answer is the professor. 

At my school, constitutional law I is required and deals with federalism and separation of powers. Constitutional law II is an elective and is centered around the 14th Amendment. If I am assigned to teach constitutional law I, I can be forced by my school to teach only subjects related to structure and not discuss individual rights. If my school can make that decision for me, why can't it prohibit (or require!) the use of the N-word? There may be good answers to that question but I am skeptical. And if the university can have such rules, why not the Board of Regents or even the state legislature?

It feels right to say our professors need to have the freedom to teach how they please and it feels terrible to believe university officials can dictate academic policies that limit speech. But feelings are generally not a good basis for constitutional law decisions. If my school can tell me that I cannot use the word "fuck" in class, which I think it clearly can, then why can't it forbid the use of an offensive case or other improper materials? These questions are harder than most people think.

What about the disputes that arise when controversial speakers are invited to campus by student groups and they are met with protests and disruption? Although Stanford is not a state school, the recent flair up between Judge Duncan and Stanford students was a disaster for everyone. I happened to be at a conference with Dean Erwin Chemerinsky when the controversy erupted. Erwin has co-written a book on free speech on campus and is one of our leading first amendment experts. He is the Dean of a public school, Berkeley, and he told me that he could not, on the basis of viewpoint, veto speakers chosen by students. And there is caselaw to back idea that up. But I'm not sure that should be the law. Let's unpack this problem a little bit.

Imagine a student group at a public university wants to invite someone to campus who believes strongly that white people are the devil, that the history of America is racism and sexism, and that the only way out of our current political polarization is for the President and Senate to appoint only women of color to federal judgeships for the next few decades or so. Imagine that various conservative student groups (and other student groups) think these ideas are terrible, dangerous, racist, and sexist. And, as is often the case, they plan on major disruptions of the event, which may be costly to the university and create serious administrative nightmares.

According to Erwin, there is nothing the university can do about that other than to enforce rules against disrupting speakers. We saw how well that worked at Stanford last week. But what if university officials feel strongly this message will cause much disruption and has little or no pedagogical value? Why do the desires (or alleged first amendment rights) of the students trump the concerns of university leaders? The stock answer is those officials work for the state and the first amendment therefor applies to them in full force. Except, we know that it doesn't, because I am confident that state universities can require certain curricula, certain textbooks, and certain modes of teaching. So the real question is not whether university officials can regulate speech but under what circumstances. Again, this question is mostly under-theorized. 

Finally, can public universities punish students for off-campus, online speech? The Supreme Court, in a vacuous opinion, said that a high school cheerleader could not be kicked off the cheerleader squad for negative comments she posted online from outside the school about the squad. As Professor Howard Schweber and I discussed in this article, however, lower courts are really struggling with this problem at the university level, partly because the doctrine of qualified immunity for university officials has prevented many of these courts from reaching the merits of these cases.

There might be reasons to think that the first amendment should play a larger role here than in the other cases we have discussed. When the government punishes someone for their speech by taking disciplinary action against them such as suspension or expulsion, the government is acting more like a regulator or punisher than when it decides who can speak on campus. But if the speech in question does harm to the university environment and invites chaos and disruption, then an entirely different set of concerns arise. Again, we are not close to having coherent answers to these difficult questions.

The first amendment applies differently to government as employer than to government as regulator. The first amendment applies differently to the government as spender than to the government as regulator. It may well be that an entirely different set of concerns should dictate answers to the questions raised by the government as an educator rather than as regulator. Or maybe not. But for now, what we have mostly when it comes to free speech at public universities is a large constitutional void. We need to do better.