Campus Free Speech

Jonathan H. Adler | 8.30.2024 11:27 AM

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........

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