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Freedom of Speech and Campus Discipline: What Rights do Students at Private Schools Have?

yale-university-1604159_1920Freedom of speech on campus—the freedom to express opinions, including when they are unpopular—has long been a key principle of American academic institutions. Thomas Jefferson wrote to prospective members of the faculty of the University of Thomas Jefferson that the institution would be “based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” Yet this principle is sometimes more honored in the breach than in the observance. The University of Thomas Jefferson shortly thereafter rescinded a professor’s appointment because he was a Unitarian. (This article is a very interesting account of the early history of academic freedom in America.)

Most people are probably generally familiar with the concept of tenure as a protection for faculty members’ academic freedom, permitting them to freely choose the subject areas of their work and to freely share their ideas even when those ideas may be deeply unpopular. Those protections may prove not to be absolute, and they are available to fewer and fewer faculty, as more and more universities have increased their reliance on adjunct faculty, particularly for teaching purposes. But they are wholly unavailable to students, and the limits on acceptable student speech are often unclear and governed by a complicated set of policies and principles.

In a recent post, I wrote about the First Amendment’s protection of student speech at public institutions, and the way that freedom of speech can check a college’s ability to discipline students for certain types of conduct. Students at private universities and colleges are in a different situation, constitutionally speaking. Because discipline by a private institution is not “state action,” the constitution is not violated when a private college disciplines a student for his or her speech, even if the student’s conduct would be constitutionally protected if it happened at a public college. That does not inevitably mean that such discipline is legal or that a student has no possible claims. This post is far from comprehensive, but notes a few possible legal arguments for students facing disciplinary consequences for campus speech.

Students at private colleges have contractual relationships with their schools. The specific terms of those relationships are generally found in materials like student handbooks and the college’s written disciplinary procedures. If a school attempts to discipline a student for conduct not covered in its handbook, the student may have a claim for breach of conduct. As parties to the contract, colleges also have a duty of good faith and fair dealing in the context of disciplinary matters. In determining whether student discipline violates the contract, courts apply the “standard of reasonable expectation,” asking how a reasonable student would interpret the terms of the handbook. In some cases where universities seem to have overreached in penalizing students for speech, there may be viable legal arguments that the conduct actually does not violate the university’s policies when those policies are reasonably interpreted.

Universities also sometimes represent to their students, in handbooks or elsewhere, that their academic freedom and rights to freely express their views will be respected. These are provisions that students should be able to rely on. If in fact the university then takes action to punish students for their speech, they may have breach of contract claims against the university. And in some cases, whether a student has actually violated a school’s disciplinary code should be assessed with the school’s stated commitment to free speech in mind.

Outside of the realm of contract claims, federal civil rights laws that prohibit discrimination—including Title IX (forbidding sex discrimination), Title VI (forbidding race discrimination), the Americans with Disabilities Act and the Rehabilitation Act of 1974 also prohibit retaliation against people who “oppose discriminatory practices.” That opposition can take the form of speech about discriminatory practices or incidents at an institution. Students who are disciplined for speech or expressive activity aimed at opposing discrimination may therefore have claims under those civil rights laws. Civil rights laws in some states may also offer a means to challenge restrictions on student speech. In Massachusetts, for example, courts have recognized speech-based causes of action under the Massachusetts Civil Rights Act, including, in one case, where a professor alleged that a private college had denied her tenure in retaliation for her past speech.

The Federal Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague letter in 2003 concerning First Amendment protections and their interactions with civil rights laws prohibiting discrimination. In that letter, OCR made it clear that it interprets its own regulations consistently with First Amendment requirements, even at private institutions, writing, “OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.” Specifically addressing situations in which prohibitions on “harassment” were interpreted to forbid “all offensive speech regarding sex, disability, race or other classifications,” OCR noted that to be prohibited by federal civil rights statutes, harassment must be sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program—the “mere expression of views, words, symbols or thoughts that some person finds offensive” is not enough. Private institutions are not thereby barred from disciplining students for expressing offensive views—but OCR’s guidance may arguably be another factor to take into account when determining how a reasonable student would interpret a school’s code of conduct to apply to speech.

If you or your child is being disciplined by a school for speech, contact our student rights lawyers at (617) 742-6020.

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