University Missions and Legal Limitations on Campus Speech

42 Pages Posted: 23 Feb 2023

See all articles by R. George Wright

R. George Wright

Indiana University Robert H. McKinney School of Law

Date Written: February 18, 2023

Abstract

Hardly a day passes without news of a conflict between free speech on campus and a university goal such as community, diversity, civility, equality, dignity, or even someone else’s speech rights. The university in question may or may not regard broad free speech rights, or any of the other goals listed above, as fundamental to its institutional mission. But many universities do indeed seek to emphasize all of these values. Our fragmenting broader culture has arrived at no consensual approach to conflicts between free speech on campus and a wide range of other basic university values. Nor do we have any consensus as to how severe these conflicts must be.

Given this absence of anything like a cultural consensus on how to approach tradeoffs between university faculty or student speech rights and any number of other university values, legislative and judicial modesty in this area should generally be encouraged. Legislatures and courts should be strongly reluctant to impose on universities any allegedly best model for addressing such conflicts. The law should be open to a range of defensible university policies on such value tradeoffs.

Legal tolerance of a range of university approaches to the legitimate scope of campus speech may, importantly, pay off in practice. A reluctance to legally impose controversial rules in this area may, crucially, promote healthy experimentation and competition among alternative university speech policies. A legitimate diversity of campus speech policies may also reduce the risk of broad and remarkably costly cultural mistakes. Legal tolerance of diversity in university approaches to campus speech may promote the discovery, and the broad and voluntary adoption, of attractive approaches to the value conflicts at stake.

This Article elaborates upon, and seeks to justify, this endorsement of legislative and judicial modesty in addressing issues involving speech in our public and private universities.

Keywords: university missions, free speech, diversity, community

JEL Classification: K10, K30

Suggested Citation

Wright, R. George, University Missions and Legal Limitations on Campus Speech (February 18, 2023). Available at SSRN: https://ssrn.com/abstract=4363086 or http://dx.doi.org/10.2139/ssrn.4363086

R. George Wright (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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