Does Title VI Require Private Universities to Restrict Student Speech? (Cross-posted at Knight First Amendment Institute Blog)
[N.B. The following essay first appeared earlier this month at the blog of the Knight First Amendment Institute at Columbia University. As the institute's executive director Jameel Jaffer explains in an introductory essay, my contribution is one of several to emerge from an all-day gathering of free speech scholars. I encourage readers to check out the other insightful essays in the series.]
In one of the first judicial rulings in a lawsuit charging a university with violating Title VI by allowing students (and possibly others on campus) to stage protests of the war in Gaza, Federal District Judge Richard Stearns rejected Harvard’s motion to dismiss the complaint as failing to state a claim. According to Judge Stearns, the plaintiffs’ allegations, if taken as true (as they must be in resolving a motion to dismiss) established that Harvard had been deliberately indifferent to student-on-student antisemitic harassment in violation of its Title VI obligations.
In so ruling, Judge Stearns reserved judgment on a critical argument Harvard raised in its defense: that more aggressive action against the protesters would have violated their free speech rights. In a footnote, he wrote that “the issue should not be decided at this stage.” Even so, he strongly hinted that at some later stage he would rule against Harvard on this point. He wrote:
It may be true that, as a policy matter, Harvard has elected not to curtail the protests in the interest of protecting free speech (although as a private institution, it is not constitutionally required to do so). The court consequently is dubious that Harvard can hide behind the First Amendment to justify avoidance of its Title VI obligations.
Presumably Judge Stearns thought he could delay deciding the validity of Harvard’s First Amendment defense because the complaint’s allegations, read in the light most favorable to the plaintiffs, indicate that the protesters were not within their rights under the First Amendment.
How should Judge Stearns rule on Harvard’s First Amendment defense if and when he deems it ripe? More broadly, does Title VI ever require private universities to take actions against students or other protesters that, if taken by a public university under similar circumstances, would violate the protesters’ First Amendment rights?
These questions should be easy to answer.
As a matter of ordinary statutory construction, Title VI should not be read to impose greater speech-restrictive obligations on private universities than it imposes on public ones. After all, the text of (and everything else about) Title VI is identical, whether applied to private or public universities. In a 2005 opinion authored by Justice Antonin Scalia, the Court applied a rule of statutory construction requiring that statutes be given the same meaning from one case to another.
To be sure, courts do not always follow that rule. Sometimes they read a single statutory phrase to mean one thing in one context and something else in another context. The best reason to do so is constitutional avoidance. Suppose a statute’s plain meaning is X but reading it to mean X as applied to P1 would be unconstitutional. If so, a court might read the statute to mean Y as applied to P1 but X as applied to other parties as to whom the plain-meaning interpretation is constitutional. The canon of constitutional avoidance applies in P1’s case but not in other cases. Professor Jonathan Siegel offered real-world examples of this phenomenon in a 2005 article in the Texas Law Review.
However, in our real-world example, Harvard is like P1. Reading Title VI to require a private university to crack down on what would be protected speech by students at a public university at least raises a constitutional question and thus itself triggers the avoidance canon. Judge Stearns admitted as much in the very footnote in which he tried to explain why he wasn’t yet addressing Harvard’s invocation of its students’ free speech rights.
In ruling on Harvard’s motion to dismiss, Judge Stearns had the benefit of an amicus brief from the Foundation for Individual Rights and Expression (FIRE), which made arguments based on the facts of a 1999 Title IX case involving a fifth-grade student. Judge Stearns conceded that “FIRE may be correct that it ‘cannot be that the federal government could require private universities to enforce policies against speech that the government itself could not enforce at a public middle school . . . .” If FIRE may be correct, then there is at least a substantial question whether the Constitution permits reading Title VI to impose obligations to restrict student speech on private universities that could not be imposed on public ones consistent with the First Amendment. Thus, the avoidance canon is triggered by Harvard’s actual case, and there is no occasion for reading Title VI differently as between applications to private versus public universities.
Indeed, the constitutional question is more than substantial. It is essentially open and shut. In their contribution to this symposium, Professors Evelyn Douek and Genevieve Lakier ask whether Department of Education guidance to universities with regard to their obligations under Title VI crosses the line between permissible “jawboning” and impermissible coercion. There is no such question with regard to the actual judicial imposition of liability in response to a Title VI lawsuit. That is coercion, plain and simple. When the government says that a private university must restrict student speech or else face civil liability, it converts the private university into a state actor subject to constitutional limits.
To be clear, my point is only that Judge Stearns was wrong to suggest that Harvard’s status as a private university weakens its First Amendment defense against Title VI liability. It is possible to read the First Amendment itself to provide students and others on campus with fewer—or at least different—rights against a public university than citizens generally have against the government as regulator. Perhaps some features of the campus setting give rise to “captive audience” or other concerns that are not present in the case of a typical public forum. If so, however, Title VI would still mean the same thing as applied to private as to public universities.
There is another reason to support a legal regime in which private universities respect free speech to the same extent as public ones. Judge Stearns described Harvard’s decision “not to curtail the protests in the interest of protecting free speech” as a “policy” choice of the university. It is that, but it is much more. A private university’s decision to protect free speech is not any old policy choice—like a faculty decision to require all students to take a physical sciences class or an administration decision to keep the library open late during exam period. Freedom of inquiry, thought, and speech are essential values of just about any institution of higher education. Federal law should not be construed to require private universities to sacrifice them.