Sunstein: Free Speech And The Educational Mission

Cass Sunstein (Harvard; Google Scholar), Free Speech and the Educational Mission (excerpted from Campus Free Speech: A Pocket Guide (Harvard University Press Sept. 3, 2024)):

Public colleges and universities are bound by the First Amendment. Their private counterparts are not (though a state might choose to apply the requirements of the First Amendment to them, as California has largely done). But if private universities choose to follow the First Amendment, they will make life a lot easier, and also a lot better, for faculty, administrators, and students alike.

One reason is that First Amendment principles make most cases easy.

The First Amendment does not protect plagiarism, sexual harassment, or true threats ("I will hurt you if I see you in the dining room again"). At the same time, the First Amendment protects a wide range of viewpoints, including those that many consider, or that just are, offensive,  hurtful, insulting, or humiliating.

If someone on campus says, "Capitalism is racism," or "Israel should never have been created," or "Democrats are communists," or "January 6, 2021 should be a national holiday," or "Russia all the way," or "Affirmative action is the worst form of race discrimination," the First Amendment doesn't allow regulation.

Still, there are plenty of hard cases. Many of the hardest arise when a college or university claims that restrictions are justified by its educational mission. ...

A university can deny tenure to a law professor whose published work consists entirely of science fiction. That's also a form of content discrimination, and it's also okay. ...

You can even imagine cases in which viewpoint discrimination, which is ordinarily anathema, is acceptable. Again the reason is the educational mission.

Suppose a law school thinks that its faculty is dominated by people with left-of-center views, especially in constitutional law. Can the law school decide that in hiring, it will give a preference to people with right-of-center views?

The answer is almost certainly yes. A law school can decide, without offense to First Amendment principles, that it wants to ensure diversity of viewpoints, for the benefit of faculty and students alike. ...

In my view, colleges and universities do best to begin with a presumption in favor of freedom. But as they say, general propositions do not decide concrete cases. Adoption of First Amendment principles makes most cases easy—but not all of them.

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