Hostile Learning Environments, the First Amendment, and Public Higher Education

Abstract

The Supreme Court has never squarely addressed the First Amendment status of student-on-student verbal harassment at public institutions of higher education. Does the First Amendment permit public colleges and universities to discipline students on the grounds that their speech has created a hostile learning environment for others on campus? If so, what is the analysis underlying that constitutional judgment and what are the requisite hallmarks of such an environment? Does it matter whether a student’s speech created the hostile environment on its own or whether it wielded that power only by virtue of its combination with the speech of other students? Does it matter whether the speech was directed to those for whom it created the hostile environment or whether the speech was merely overheard?

This Article addresses those questions. To frame the First Amendment discussion, the Article first provides a statute-centered description of harassment and hostile learning environments; the description is a familiar one but is nevertheless often mischaracterized. The Article then argues that, if the Court’s Speech Clause jurisprudence were insistently originalist in nature, we could confidently say that the First Amendment gives public colleges and universities broad latitude to discipline students for speech that, in administrators’ judgment, is antithetical to important institutional values. But the Court today rejects key analytic touchstones that an originalist methodology would likely favor. Using the modern Court’s preferred framework, the Article then advances arguments that rely heavily upon both tradition and modern free-speech values. In some circumstances, student speech that creates hostile learning environments for classmates should be deemed categorically excluded from the First Amendment’s protection. In other circumstances, however, the First Amendment should be deemed to shield students from discipline unless they make their harassing statements with a mens rea akin to defamation law’s actual malice.

Keywords: hostile, environment, learning environment, harassment, campus, free speech, first amendment, originalism, actual malice

JEL Classification: K10, K19, K39, K49