Public colleges and universities are bound by the First Amendment. Their private counterparts are not (though a state might choose to apply the requirements of the First Amendment to them, as California has largely done). But if private universities choose 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, sexual harassment, or true threats (“I will hurt you if I see you in the dining room again”). At the same time, the First Amendment protects a wide range of viewpoints, including those that many consider, or that just are, offensive, hurtful, insulting, or humiliating.
If someone on campus says, “Capitalism is racism,” or “Israel should never have been created,” or “Democrats are communists,” or “January 6, 2021 should be a national holiday,” 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 class. That’s a form of content discrimination, and it’s okay.
A university can deny tenure to a law professor whose 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 assigned 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 class, that they are fools or idiots, discipline is almost certainly permissible. If professors repeatedly say the f word in class, 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 institution of higher education can do something 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. Again the reason is the educational mission.
Suppose a law school thinks that its faculty is dominated by people with left-of-center views, especially in constitutional law. Can the law school decide that in hiring, it will give a preference to people with right-of-center views?
The answer is almost certainly yes. A law school can decide, without 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 class. 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 class, 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 something like this outside of the classroom. 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 Speech.)
We know that governments can restrict the speech of their employees if the restriction is reasonably justified by reference to the government’s legitimate interests as employer. If an official in a policymaking role at the State Department says that the United States is horrible 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 something 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 slope problem here is serious. A host of imaginable views, expressed outside of class, might upset some students or make them feel in some sense excluded or demoralized. Consider these: (1) “Religion is the opiate of the people.” (2) “Atheists have no morality.” (3) “Liberalism is a disorder.” (4) “Hunting should be a crime.”
I have been focusing on speech 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 sexually explicit video. Or suppose that students form a society for celebration of the Confederacy or in defense of Hitler. In such cases, we can easily imagine a claim, by some or many at the institution, that the relevant speech 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.
