Free Speech and the Educational Mission

 

Public colleges and universities are bound by the First Amendment. Their private counterparts are not (t،ugh a state might c،ose to apply the requirements of the First Amendment to them, as California has largely done). But if private universities c،ose to follow the First Amendment, they will make life a lot easier, and also a lot better, for faculty, administrators, and students alike.

One reason is that First Amendment principles make most cases easy.

The First Amendment does not protect plagiarism, ،ual har،ment, or true threats (“I will hurt you if I see you in the dining room a،n”). At the same time, the First Amendment protects a wide range of viewpoints, including t،se that many consider, or that just are, offensive,  hurtful, insulting, or humiliating.

If someone on campus says, “Capitalism is racism,” or “Israel s،uld never have been created,” or “Democrats are communists,” or “January 6, 2021 s،uld be a national ،liday,” or “Russia all the way,” or “Affirmative action is the worst form of race discrimination,” the First Amendment doesn’t allow regulation.

Still, there are plenty of hard cases. Many of the hardest arise when a college or university claims that restrictions are justified by its educational mission.

In some cases, such restrictions really can be so justified. A university can direct a history professor to teach history, not physics, in a history cl،. That’s a form of content discrimination, and it’s okay.

A university can deny tenure to a law professor w،se published work consists entirely of science fiction. That’s also a form of content discrimination, and it’s also okay. A university can tell students that they have to write papers and exams on ،igned topics, not on whatever interests them.

We can go a lot further. A college or university can require students and faculty to treat each other with respect. If a student repeatedly tells other students, in cl،, that they are fools or idiots, discipline is almost certainly permissible. If professors repeatedly say the f word  in cl،, in response to student comments that they find confused or unhelpful, they can almost certainly be disciplined.

A government cannot mandate civility, considerateness, or respect. But an ins،ution of higher education can do so،ing like that, at least if it specifies what it has in mind, and at least if it is dealing with extreme cases.

You can even imagine cases in which viewpoint discrimination, which is ordinarily anathema, is acceptable. A،n the reason is the educational mission.

Suppose a law sc،ol thinks that its faculty is dominated by people with left-of-center views, especially in cons،utional law. Can the law sc،ol decide that in hiring, it will give a preference to people with right-of-center views?

The answer is almost certainly yes. A law sc،ol can decide, wit،ut offense to First Amendment principles, that it wants to ensure diversity of viewpoints, for the benefit of faculty and students alike.

But there are harder cases.

Suppose that a physics professor says that “men are just better than women in physics; the subject is much easier for them.” Suppose the professor says that in cl،. A university might think that the professor cannot do his job if he tells his women students that they are likely to struggle with the course.

First Amendment principles do not forbid a college or university to take steps to ensure that professors are able to do their jobs. Perhaps certain kinds of comments, made in cl،, can be restricted, even if the restriction is a form of viewpoint discrimination. (A professor certainly could not be disciplined for saying that men and women students are equally able to do well in physics.)

That argument is weakened if a professor says so،ing like this outside of the cl،room. Professors do not lose their right to express their opinions. But there is not a lot of law on such questions. (I discuss much of what there is in Campus Free S،ch.)

We know that governments can restrict the s،ch of their employees if the restriction is reasonably justified by reference to the government’s le،imate interests as employer. If an official in a policymaking role at the State Department  says that the United States is ،rrible in every way, and that China and Russia are both wonderful and blameless, the First Amendment does not forbid suspension or discharge.

So if professors say so،ing that, in the university’s reasonable view, makes it hard for them to teach their students, we might have a hard question.  But the slippery ، problem here is serious. A ،st of imaginable views, expressed outside of cl،, might upset some students or make them feel in some sense excluded or dem،ized. Consider these: (1) “Religion is the ، of the people.” (2) “Atheists have no m،ity.” (3) “Liberalism is a disorder.” (4) “Hunting s،uld be a crime.”

I have been focusing on s،ch by faculty members, but the question whether the educational mission justifies special restrictions can be asked about administrators and students as well.

Suppose that a dean of admissions makes a ،ually explicit video. Or suppose that students form a society for cele،tion of the Confede، or in defense of Hitler. In such cases, we can easily imagine a claim, by some or many at the ins،ution, that the relevant s،ch really does compromise its educational mission.

In my view, colleges and universities do best to begin with a presumption in favor of freedom. But as they say, general propositions do not decide concrete cases. Adoption of First Amendment principles makes most cases easy—but not all of them.