By Tatiana Tway
Colleges across the nation are struggling to find a balance between free expression and the safety and comfort of their students.
With violent protests leading to the cancellation of events, the creation of safe spaces and trigger warnings and reports revealing students’ complicated viewpoints on speech, the First Amendment and the principles it embodies have been at the forefront in recent months.
Because the First Amendment does not apply to private college campuses, free expression cannot always be protected by simply pointing to the Bill of Rights. Still, there are many reasons why free speech should be preserved even when not required by the constitution.
The U.S. Senate Committee on the Judiciary held a hearing on June 20 entitled “Free Speech 101: The Assault on the First Amendment on College Campuses.” The hearing included testimony by Zachary Wood, president of Uncomfortable Learning, a group at Williams College, a private school in Massachusetts.
Woods said he “strive[s] to broaden the range of political discourse on campus by inviting speakers with challenging, provocative, out-of-the-mainstream views on pressing issues of our time.”
Wood said he and his organization faced backlash after inviting one such speaker who had previously made inflammatory remarks about African Americans. As a result, Wood said, the speaker’s invitation was rescinded and new processes for inviting guest speakers were imposed by the school’s administration.
This is not the only free speech controversy experienced by a private New England college in recent months. Protests over a speaker lead to a professor being injured at Middlebury College in Vermont; Harvard rescinded the admission of students due to comments they made in a private Facebook group; and Trinity College in Connecticut suspended a professor after he used racially charged language on social media.
With 151 private colleges and universities in New England, ensuring free speech and expression on private campuses is an important but difficult task. Without the full constitutional weight of the First Amendment behind them, those opposing speech restrictions on private campuses must make arguments in other ways.
One way is to argue the rationale behind the First Amendment, rather than the application of the amendment itself. In his testimony to the Committee on the Judiciary, U.S. Sen. Chuck Grassley (R-Iowa) said:
“College students vote . . . [O]ur democracy depends on the ability to try to advocate to inform or to change minds. When universities suppress speech, they not only damage freedom today, they establish and push norms harmful to democracy going forward. These restrictions may cause and exacerbate the political polarization that is so widely lamented in our society.”
If the public policy benefits of free speech do not sway these universities, legal remedies may exist. As the Foundation for Individual Rights in Education explains, “private colleges and universities are contractually bound to respect the promises they make to students. Many institutions promise freedom of expression in university promotional materials and student conduct policies . . . They may not be bound by the First Amendment, but private institutions are still legally obligated to provide what they promise. Private institutions may not engage in fraud or breach of contract.”
But, as others caution, this promise of free speech must be balanced with the practical realities of providing that freedom.
“Freedom of expression is integral to the mission of higher education,” testified Dr. Fanta Aw, interim vice president of American University. But she added, “When students fear for their safety, this affects their ability to study and participate fully in the life of the university.”
It is, therefore, not completely unreasonable for private universities to use their discretion to curtail speech for the comfort and safety of their students, she said.
The question remains: How can First Amendment principles on private campuses be protected despite the need of academic institutions to protect their students?
Sen. Grassley suggested litigation as one possible way, saying that “theoretically, private colleges that accept federal funds could be subject to individual private lawsuits when free speech rights, including religious free speech rights, are violated.” He also noted the possibility of legislation to address the issue.
Perhaps the most apropos solution is education on the value of free speech. This could include voluntary campus events, presentations to incoming freshman and reference materials. Additional education for administrators and professors about First Amendment principles would also help the cause.
As Wood testified, social issues on college campuses cannot be adequately addressed without a full appreciation for the value of free speech.
“It is said that the real issues that need to be addressed on college campuses are not free speech and intellectual freedom. Rather, the most critical issues are racism, sexism, and micro-aggressions,” Wood said. “The fundamental problem with this characterization is that all of these issues intersect and none of them can be resolved without an appreciation of free speech and intellectual freedom in higher education.”
Tatiana Tway is a rising second-year law student at New England School of Law | Boston. She is a 2017 summer legal fellow for the New England First Amendment Coalition.
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