Universities’ Competing Free Speech Obligations Need Untangling

The lawyer’s old adage, “it depends,” usually serves to provide attorneys more time to provide the most correct and measured answer. But it led to great backlash following the congressional hearing on antisemitism in December. The presidents of Harvard University, the Massachusetts Institute of Technology, and the University of Pennsylvania faced calls for resignation for giving apparently legalistic responses to seemingly simple questions.

The tangled intersection of free speech, harassment, and discrimination often requires complex, fact-specific evaluation to get beyond the “it depends” adage. Below are a few broad principles for public and private universities to keep in mind.

Balancing Obligations

Public colleges and universities are subject to the First Amendment of the US Constitution, which prohibits them from infringing on employees’ or students’ free speech rights. At the same time, these entities are subject to laws that require them to address harassment and discrimination based on an employee’s or student’s protected status.

These are distinct but overlapping legal obligations. Freedom of speech doesn’t absolve a college or university from responding to reports of harassment or discrimination. If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the institution must act to eliminate the hostile environment and prevent the harassment from reoccurring.

But disciplining speakers or preventing them from expressing protected speech can violate the Constitution. Moreover, if a school’s written policies prohibiting harassment or bullying are too expansive—for example, a bullying policy that prohibits speech that is “inappropriate” or simply “offensive”— a court could find the policies vague and overbroad and thus invalid under the First Amendment.

Public schools, like the courts, must balance these legal obligations. Whether the speaker had a First Amendment right to say something is a crucial question, but the inquiry shouldn’t end there. Even if the school chooses not to shut down the speech or discipline the speaker, it can take creative measures such as issuing a statement to the community or offering students and employees alternatives to exposure to the speech.

Private educators in most states aren’t subject to First Amendment restrictions. California, however, extends constitutional free speech protections to students at private secondary and post-secondary schools through a set of statutes known as the Leonard Law.

Academic Freedom

What about professors who speak out, perhaps in vivid terms, about global conflict? To what extent does academic freedom protect their speech?

Professors at public colleges and universities, as government employees, have First Amendment rights to speak as citizens on matters of public concern. However, under well-established US Supreme Court authority, those professors’ speech rights are limited by a balancing test that weighs employee speech rights against the administrative interests of the public agency.

In discharging their official duties, faculty have no free speech rights, with an important exception—some appellate circuits have held that faculty do have free speech rights as to their “scholarship or teaching” that they can invoke against their employer. Federal circuits covering California, New York, and Ohio have acknowledged these protections, whereas some circuits—and the Supreme Court—have yet to weigh in.

What Constitutes Harassment?

Does speech have to cross over into conduct to constitute harassment? The answer is no, under Title VI and VII of the Civil Rights Act of 1964 and virtually all state anti-discrimination laws. Speech based on protected status—including epithets, chants, derogatory comments, slurs, and jokes—can be unlawful harassment if it sufficiently alters the conditions of employment or interferes with a student’s access to educational benefits or opportunities.

As the Department of Education clarified in a recent “Dear Colleague” letter, speech need not target an individual to constitute harassment under federal anti-discrimination laws. Speech issued to the public can rise to the level of harassment if, based on the totality of circumstances, the speech is “subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”

Consistent Enforcement

As if the above reminders aren’t complicated enough, public schools should also note that enforcing harassment and discrimination policies inconsistently will almost certainly result in legal challenges. An individual subject to discipline may claim impermissible viewpoint discrimination under the First Amendment if they can point to a circumstance in which the institution didn’t similarly enforce its policies against a speaker who expressed a different viewpoint.

There is an additional risk of a discrimination claim if these differing viewpoints are tied to a protected status—for example, if a university restrains or punishes speech denigrating one ethnic or religious group but not another.

Pressure on Institutions

Ongoing campus protests have prompted nationwide concern for how to protect free speech in higher education, and how to do so without infringing individuals’ rights to pursue employment or an education free of unlawful harassment.

The American Bar Association recently took a stand in favor of free expression and academic freedom. The ABA House of Delegates this month voted to adopt a standard for accreditation of law schools, both public and private, which requires adoption of “written policies that protect academic freedom” and “written policies that encourage and support the free expression of ideas.”

The new ABA standard states generally that an institution may restrict “expression that violates the law” or “that constitutes a genuine threat or harassment,” but doesn’t define harassment. An institution will have to harmonize its policies on speech with applicable law governing harassment, and with how it wishes to structure its student codes of conduct and other applicable conduct rules.

Takeaway

As the congressional hearing illustrated, the intersection of free speech and anti-discrimination laws can raise more questions than answers, and institutions seeking to nail down responses are faced with a series of balancing tests.

Still, schools should aim to identify and restrict harassment, and to punish instances of harassment uniformly. The balancing act isn’t easy, but even-handed policies rooted in the law will provide the safest harbor from the backlash of “it depends.”

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David Urban is senior counsel with Liebert Cassidy Whitmore, representing educators and agencies in labor and employment law.

Gabriella Kamran is an associate with Liebert Cassidy Whitmore, specializing in employment and labor law.

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