Back to School Basics: Rights to Free Speech in Higher Education

Colleges and universities have traditionally valued free expression, experimentation, and open discourse as a core part of their missions. Students and faculty should be free to speak their minds and express themselves in order to provoke discussion and achieve greater understanding. But there are limits to the legal rights to free speech on campus. What those limits are depends on factors like whether a school is public or private, and what promises have been made in university handbooks or policies. 

A public university (including state colleges and universities as well as community colleges) is subject to the limitations of the First Amendment. Under the First Amendment, speech or expression is generally protected by the Constitution unless it falls into one of a limited number of categories of unprotected speech, such as threatening speech toward another (“true threats”) and aggressive or insulting speech delivered face-to-face that is likely to provoke violence (“fighting words”). A public college usually cannot punish a student for First Amendment-protected speech unless the student or their speech is disruptive to the educational environment; this is a constitutional right that can be vindicated under Section 1983, part of the Civil Rights Act. There are also limits on the ability of a university to punish a student for off-campus speech. Faculty are also entitled to First Amendment protections, but given that they are often speaking as teachers in their roles as university employees, the school has a greater ability to control what they say in their capacities as faculty. 

Private universities, in contrast, generally do not have to abide by the First Amendment definition of freedom of speech. (State laws vary on this. Some states, like California, have imposed First Amendment-type limitations at private colleges by state law, and in Massachusetts, a private university may be liable under the Massachusetts Civil Rights Act if it interferes with a student or faculty member’s constitutionally protected speech through threats, intimidation, or coercion.) As we have noted on this blog before, colleges that are not state-sponsored are typically governed by their established policies, particularly those in their student and faculty handbooks. Many schools have explicit academic freedom policies or have general language in their mission statements about the importance of freedom of expression. Such policies can be enforceable through a suit for breach of contract if a school imposes discipline in violation of the expectations of academic freedom that it had set. Faculty handbooks also often include promises of academic freedom; if not, universities will often abide by the principles and recommendations of the American Association of University Professors, although they may not be binding if not incorporated in a handbook or union contract. 

Sometimes, one person’s free speech collides with the rights of another member of the university community, as with allegations of sexual harassment, racial harassment, or bias or hate speech based on another protected characteristic. A university that accepts federal funds (i.e., all public and most private universities) is required under laws such as Title IX and Title VI to take action when a student or faculty member faces a hostile educational environment or other discrimination based on sex (including sexual harassment, sexual orientation, and gender identity), race, color, or national origin, or disability. Other laws or university policies may prohibit bullying or harassment based on other characteristics such as religion. Regulations under Title IX state that a school cannot apply its sexual harassment policies in such a way as to violate First Amendment principles of free speech, highlighting the potential for conflicting legal rights. It can sometimes be difficult to differentiate when provocative or unpopular speech crosses a line into unprotected harassment that violates another individual’s rights. That requires an assessment of the nature of the speech as well as both the subjective feelings of the alleged target of harassment and how a reasonable person would be expected to react to the expression at issue. Because these answers are often difficult, those who have been accused of harassment and those who believe they are victims of harassment on campus would benefit from good legal advice to make sure their rights are protected. 

If a university may be violating your free speech rights, fill out our online intake form or call us at (617) 742-6020 to be connected with an academic rights lawyer.