Free speech is a fundamental right in higher education, but its scope and protections vary significantly between public and private universities. Understanding these differences is essential for students facing censorship or punishment of their speech on campus. Continue reading and reach out to the academic freedom lawyers here at Allen Harris to learn how free speech rights apply at public and private institutions and what these distinctions mean for students.
Are Free Speech Rights Protected at Public Universities?
Yes, free speech rights are strongly protected at public universities because they are government entities bound by the First Amendment. This means that public universities cannot restrict speech based on its content or viewpoint, with a few narrow exceptions. Speech that constitutes threats, harassment, incitement to violence, or other unlawful conduct is not protected, but otherwise, students are free to express their views, even if those views are controversial or unpopular.
For example, in Healy v. James (1972), the Supreme Court ruled that public universities could not deny recognition to a student organization based on its viewpoint, reinforcing the principle that government-affiliated institutions cannot discriminate against lawful expression. In Papish v. Board of Curators of the University of Missouri (1973), the Supreme Court held that “the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of “conventions of decency.”
Do Private Universities Have to Protect Free Speech?
Private universities are not bound by the First Amendment because they are not government entities. Instead, they are governed by their own policies and contractual obligations to students and faculty. While many private institutions pledge to uphold free expression through their codes of conduct, handbooks, or mission statements, these commitments are voluntary and may be limited by other institutional values.
For example, some private universities may prioritize religious or ideological principles that take precedence over unrestricted free speech. Others may implement strict policies aimed at creating a particular campus culture, such as prohibiting hate speech or offensive language. These policies are generally enforceable as long as they are clearly stated and consistently applied.
However, private universities that promise free speech in their policies may be held accountable if they fail to honor those commitments. Courts have occasionally intervened in cases where a private university’s actions violated its contractual obligations to protect free expression.
What Are the Practical Implications for Students?
The differences between public and private universities have significant implications for students’ free speech rights. They are as follows:
- Public Universities: Students at public universities can challenge restrictions on free speech through legal avenues, citing constitutional protections. Policies that infringe on free expression, such as vague speech codes or policies that discriminate on the basis of viewpoint, are frequently overturned by courts.
- Private Universities: At private universities, the focus is on contractual rather than constitutional rights. Students should familiarize themselves with their university’s code of conduct, student handbook, and other governing documents to understand their rights and obligations.
For both types of institutions, transparency and consistency in applying policies are critical, and disputes often arise when policies are applied unevenly or appear to target specific viewpoints.
