Private Universities That Reject First Amendment Principles Put Themselves At Legal Risk (Updated)

Conforming speech policies to the First Amendment would serve private universities well, legally and otherwise.

As private institutions, private universities are not legally obligated to comply with the First Amendment. Some university administrators relish this fact, and think this is a reason to adopt and enforce policies related to speech and expression that would not pass First Amendment muster. Some may even think this approach makes sense as a matter of reducing legal risk, given the existence of federal civil rights laws and the like. This is a mistake.

Failing to adopt and enforce speech policies that follow the First Amendment is actually a source of legal risk and potential liability, as Northwestern law professors Max Schanzenbach and Kimberly Yuracko explain in the Chronicle of Higher Education. 

Universities are facing a tsunami of federal enforcement actions and private litigation stemming from their responses — or their lack of one — to campus protests. Some universities still do not realize how legally exposed they are. Their own speech policies are a big part of the problem.

Private universities are not bound by the First Amendment, but they are bound by Title VI of the Civil Rights Act to enforce their policies in a way that does not discriminate on the basis of race, color, or national origin. But many universities have student-speech policies that are inconsistent, vague, and in some cases seemingly illegal on their face. . . .

the problem is not simply that universities have poorly written policies. It is that such policies are likely to lead to discriminatory enforcement. Universities are too one-sided and too politically homogeneous to be able to enforce ambiguous and vague policies in a neutral way.

As we have seen from recent campus controversies, universities get themselves in particular trouble when they do not enforce speech, expression, and protest policies in a neutral and consistent fashion. Thus, private universities that seek greater discretion in what sorts of speech and expression to allow actually put themselves at greater legal risk under federal law.

As Schanzenbach and Yuracko explain, conforming speech policies to the First Amendment solves these problems.

private universities should voluntarily commit to following the First Amendment with regard to student speech. Doing so will not shield universities from their Title VI obligations, but it will make compliance easier for several reasons. Committing to the First Amendment makes consistency across cases more likely. From a legal perspective, the main risk to universities from existing speech policies flows from their inconsistent and ideologically driven application. The First Amendment mitigates this risk in the first instance by simply shrinking the class of cases plausibly subject to university sanction. With less speech subject to punishment, there are fewer opportunities for administrative bias, inconsistency, and error.

Committing to the First Amendment also provides greater clarity regarding the scope of protected speech. While university speech codes are often vague and the outcomes of disciplinary proceedings secret, making it difficult for students and adjudicative bodies to understand the boundaries and parameters of university codes, there is a robust body of First Amendment case law to guide university decisions.

One thing that many university administrators seem to forget is that statutes like Title VI cannot require universities to suppress First Amendment-protected speech. For starters, the federal government cannot adopt and enforce a statute that violates the Constitution. Moreover, state universities–which are clearly bound by the First Amendment–are also fully capable of complying with statutes like Title VI.

One thing I have always found curious about university administrators who seek to avoid conforming their policies with the First Amendment is that they are implicitly adopting at least one of two arguments.  Either they believe that their students, staff, and faculty are not deserving of the same speech and expression rights as their state university counterparts, or they believe that (as administrators) they are less capable of fulfilling the university's educational and truth-seeking missions than their state university counterparts. Were I an administrator at a private university, I would be embarrassed to embrace either premise, yet here we are.

[Note: I recognize that some universities have religious or other missions that may justify a different approach, but that is not the case at most private universities.]

Of course there are other reasons why private universities should embrace First Amendment values. Among other things, this can help ensure that universities protect divergent viewpoints, foster an environment of open inquiry, and support academic freedom. Indeed, there are few things a university can do that are more integral to its educational and truth-seeking mission than to safeguard the fullest possible right to hold and express opinions, to speak and write, to listen, challenge, inquire and learn. But if that were not reason enough, adopting this sort of standard can reduce a university's legal risk too.

UPDATE: Perhaps due to lack of clarity on my part, some readers seem to misunderstand the claim about why neutrality and consistency reduces legal risk for universities. To clarify, my claim (and the claim I understand Schanzenbach and Yuracko to be making) is not that Title VI requires private universities to be ideologically neutral or consistent. As private institutions, they have no legal obligation to be neutral about ideological or other matters, and no obligation to be consistent beyond that which is entailed in their own voluntarily assumed legal commitments (such as commitments to respect academic freedom and the like).

The claim here is that a lack of neutrality and consistency in certain instances that implicate matters covered by Title VI (such as, say, the handling of protest activity that may implicate protected classes) can be a source of legal risk, and that such neutrality and consistency can protect against Title VI liability. Further, a commitment to adhere to First Amendment standards can help ensure that a university maintains a sufficiently neutral and consistent posture that will reduce its legal vulnerability. Obviously, a university that neutrally and consistently allows for overt racial harassment or other conduct that is not plausibly protected by the First Amendment could not use its consistency or neutrality as a defense, but that is not a position I understand any university administrator to be advocating.