Higher Education and the First Amendment

Fallout from the media frenzy following the congressional hearing with the presidents of elite universities leaves a question unaddressed: Should colleges and universities—whether public or private—have policies that differ from the First Amendment?

The answer is yes. Our institutions have missions vital to American interests. Higher education deserves, and should have, policies that respect the First Amendment but are distinguishable from contemporary First Amendment jurisprudence.

I know this position is contrary to many First Amendment advocates, not least followers of the Foundation for Individual Rights and Expression. FIRE has been pecking at higher education on matters of free speech for a generation. On the good side, FIRE keeps higher education and its policy writers on its toes. Colleges and universities do not always have the resources (or the vision) to hire full-time employees who focus on policy formation. FIRE is sometimes a good watchdog to institutions that go too far in stifling speech. But FIRE has also pushed higher education too far on this front. Insisting the colleges and universities conflate their policies with the First Amendment fails to recognize higher education’s missions.

That conflation begins with the failure to value distinctions between law and policy. From middle English, the word law means to “lay down.” That is a convenient metaphor for the floor of requirements that an institution must follow, from basic criminal law through the Constitution. Policy is different. From the ancient Greek polis, we get “citizenship,” “polity” and “politics.” It, too, is a helpful term for us to appreciate that colleges and universities can set a higher standard of expectations for the members of its community in pursuit of its missions. No one need to get all the way down to fighting words to maintain and support an environment of learning, research and outreach.

Reconciling law and policy to set rules on campus is never easy, but it is not impossible. Colleges and universities have been doing it and spreading the word through their myriad national associations for decades. FIRE might bang on our doors, but at least it would not be the institutional board looking for a resignation. If FIRE wants to stand for genocide, well, that would be their mistake. And there is the rub. One does not become a snowflake to know that such extremely disturbing speech has no value in an academic setting, even if today courts do not see that concept as the obscenity it is.

Adult pornography raises another example. Many institutions do not restrict adult pornography on their networks, but some do. That is a decision that should be up to the boards of institutions and their leadership and decided with input from student constituencies who rely on network services in residence halls for news, study and entertainment. If a school decides it does not want to allow pornography, that institution should have the freedom to do so. It is up to prospective students to decide if they want to attend that institution or not.

Diversity is one of the great hallmarks of American higher education. Our laws as well as our culture should be in praise of those allowances rather than hamstringing a blanket conformity that goes contrary to rich history of freedom and choice that has distinguished American society.

Time, place and manner restrictions make yet another argument. Should First Amendment jurisprudence be the floor upon which colleges and universities are required to set their rules, in contradistinction to the educational environment that administrators strive to achieve? Of course not. So let us not fool ourselves into thinking that colleges and universities are required or should follow the First Amendment blindly, and not least because politicians or the leaders of one advocacy group have a megaphone. Our institutions have a right and an obligation to adopt free expression for teaching, research and outreach, to be sure, but not at their expense.