George Leef’s latest Forbes column probes the problems faced by those advocating free speech on today’s college campuses.
A good argument can be made nowhere in America is free speech less safe than on private college and university campuses.
On public college and universities, the First Amendment applies, thus giving students, faculty members, and everyone else protection against official censorship or punishment for saying things that some people don’t want said. A splendid example of that was brought to a conclusion earlier this year at Valdosta State University, where the school’s president went on a vendetta against a student who criticized his plans for a new parking structure – and was clobbered in court. (I discussed that case here.)
But the First Amendment does not apply to private colleges and universities because they don’t involve governmental action. Oddly, while all colleges that accept federal student aid money must abide by a vast host of regulations, the Supreme Court ruled in Rendell-Baker v. Kohn that acceptance of such money does not bring them under the umbrella of the First Amendment.
At private colleges, the protection for freedom of speech has to be found (at least in most states) in the implicit contract the school enters into with each incoming student. Ordinarily, the school holds itself out as guaranteeing certain things about itself and life on campus in its handbook and other materials. If school officials act in ways that depart significantly from the reasonable expectations it created, then the college can be held liable.
As the Foundation for Individual Rights in Education (FIRE) puts it, “There is a limit to ‘bait-and-switch’ techniques that promise academic freedom and legal equality but deliver authoritarianism and selective censorship.”
Not only is there scant legal protection for free speech on private campuses, it is under vigorous attack from zealous students (and sometimes administrators) who regard it as their right and duty to assail anyone whose speech “offends” them. Saying or doing almost anything these days can conceivably land a student in trouble because someone has whined that it’s a “microaggression” or “harassment” or merely “insensitive.”
