This article considers whether the law can or should protect speech on private college and university campuses. The easy answer is “yes.” After all, both public and private institutions are places of learning and inquiry. Therefore, at first, it might make sense for First Amendment-type protections to apply across the board—if not under the United States Constitution, then under state constitutions, common law, or statutes. Furthermore, the students who helped the Free Speech Movement spread nationwide in the 1960s and 1970s did not concern themselves much with legal distinctions between public and private, so why should the law?
Using the law to protect speech on private college and university campuses becomes more difficult when considering what it takes to actually litigate a speech claim against a private school. As this article explains, there are several practical barriers to doing so, ranging from the settled status of the state action doctrine to the public policies that courts apply to bar claims that allege “educational malpractice.” In addition, some who advocate for First Amendment-type protections for private campuses may not have adequately considered the full scope of private educators. Today, private educators include not only Harvard, Yale, and their regional equivalents, but also for-profit online universities, which provide higher education to a disproportionate number of women and students of color, and sectarian schools, which are constitutionally permitted to regulate speech to fit their interpretations of religious doctrine. There has been little analysis of how speech law would apply, or not apply, to these schools. This article aims to provide such analysis.
Minnesota provides a good analytical backdrop to this issue because it houses one of the nation’s largest for-profit online universities, and Minnesota has a wide array of private schools with varying sectarian ties. Minnesota is also where R.A.V. v. City of St. Paul arose, which prevents state actors—including those at public universities—from enforcing policies that discriminate against viewpoints. Before jerking a knee toward a conclusion that R.A.V.’s principles should be extended to regulate private actors at private schools, it is worth considering the viewpoint of Robert A. Viktora (R.A.V.) in light of recent events.
In 1990, R.A.V., age seventeen, burned a cross on the lawn of an African American family in St. Paul’s Dayton’s Bluff neighborhood. Twenty-seven years later, college-aged men in Charlottesville, Virginia delivered a similar viewpoint—this time with burning torches—on the University of Virginia campus. Because the protest took place on public property, like the City of St. Paul, the University stood virtually powerless to stop it. A private university, whether nonprofit or not, would have been in a different legal position had the white supremacists’ rally happened there.
It is a sizable stretch to say anything good came out of Charlottesville, but the hateful display did provide opportunity to consider the question of what role, if any, First Amendment-type speech law can and should play on private property, such as private college and university campuses. Today, at least, the answer to that question might be one that free-speech advocates would rather not hear.
With Charlottesville on the minds of so many, this article begins by discussing the current status of campus speech. It then recounts the state and federal cases and statutes that brought campus speech jurisprudence to its present state. Next, it explores barriers that disallow those cases and statutes from applying to private campus speech. This article concludes with thoughts on how education about the use of free speech on private campuses is preferable to enacting or enforcing laws regulating the same.