Free Speech at Private Universities
Journal of Law & Education, Vol. 39, No. 2, pp. 145-182, April 2010
38 Pages Posted: 26 May 2010
Date Written: February 28, 2010
For the last thirty years, our nation’s universities have debated whether to proscribe hate speech on campus. Universities’ paramount function is to seek knowledge, and thus they desire free and open inquiry, but universities also wish to ensure that they provide a welcoming environment to historically disadvantaged groups. A detailed study of the policies of the top 150 universities reveals that the majority of universities - rather than resolve these conflicting goals - maintain contradictory policies that both protect and proscribe hate speech. This allows schools to tout different policies to different interest groups, and it leaves students vulnerable to unexpected punishment. I explore possible responses to this pervasive problem. Direct regulation - forcing private universities to allow hate speech - may vindicate the liberal ideal of free speech, but it threatens the liberal ideal of the right to private association. Applying contract law, in contrast, allows private universities to set their own policies, but not to promise community members one type of institution and then deliver another. This enables experimentation across institutions and forces universities to reach a resolution on the question of proscribing hate speech. It would thus move the debate over proscribing hate speech forward.
Keywords: Free Speech, Higher Education, First Amendment, Contracts, Private Association, Hate Speech
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