I. General Principles
The First Amendment, which restrains the power of government to limit freedom of speech, does not apply to private parties. Hence, private universities and colleges are not legally required to comply with its restrictions. As private entities, private universities and colleges are free to organize themselves to serve whatever (legal) ends they choose, and place whatever restrictions on freedom of expression on their campuses that they believe to be appropriate.
However, private universities and colleges are bound by all the ordinary moral obligations that bind any individual or group of individual human beings, one of the most important of which is the duty to keep one’s word and deal honestly with others. This means that if a private university or college represents itself to the public as maintaining freedom of expression on its campus (and members of the public rely on this representation in deciding whether to enroll at, support, or otherwise deal with the university or college), it is ethically obligated to do so.
Further, making such a representation carries with it an implicit secondary obligation. For, if private universities and colleges have a duty to honor all of their public commitments, then they also have a duty to refrain from making inconsistent public commitments, public commitments that cannot be simultaneously fulfilled. Thus, if a private university or college makes a commitment to maintain freedom of expression on its campus, it is obligated not to make any commitments that make it impossible to do so.
Many universities make a commitment to supply an inclusive, safe, and welcoming educational environment for people of all backgrounds. Because the expression of certain ideas can be offensive to the members of some groups, and make them feel unwelcome or even unsafe, such a commitment could potentially conflict with a commitment to maintain freedom of expression on campus. This means that if a university makes a commitment to both maintain freedom of expression on campus and to supply an inclusive, safe, and welcoming educational environment, it must make it clear that its commitment to maintaining an inclusive, safe, and welcoming educational environment is limited by its commitment to freedom of expressionBthat its commitment is to do all that it can to create the most inclusive, safe, and welcoming campus environment short of restricting any student’s or faculty member’s ability to express his or her sincerely held beliefs on any controversial matter.
II. Application to Harassment Policy
All private universities and colleges have harassment policies designed to discourage the harassment of members of the academic community because of their sex, race, religion, sexual orientation, disability or membership in any other protected category. A university or college that retains a commitment to freedom of expression must ensure that its harassment policy is consistent with this commitment.
Legally speaking, harassment is a form of discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of an individual’s race, color, religion, sex, or national origin. The federal courts and the federal Equal Employment Opportunity Commission (EEOC) have held that this statute “affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Thus, conduct that creates an intimidating, hostile, or offensive work environment for individuals because their race, color, religion, sex, national origin, age, or disability constitutes illegal discrimination. This form of discrimination is called harassment. Under the law, all universities or colleges that accept federal funding must ensure that their campuses are not intimidating, hostile, or offensive environments for women and racial and ethnic minorities. This leads directly to the question of what types of speech or written expression can constitute illegal harassment.
The First Amendment restrains the power of the Federal and state governments to interfere with citizens’ verbal and written expression. Yet the government regularly bans or punishes certain forms of expression. For example, treason, criminal solicitation, perjury, and fraud are all crimes that are committed by either saying or writing something, yet they are within the scope of the government’s power. This is sometimes expressed by saying that in such cases the speech is “conduct” that is not protected by the First Amendment.
The courts distinguish between protected expression and unprotected “conduct” on the basis of whether the government regulation is content-neutral or content-based. A law is content-neutral, and thus not violative of the First Amendment, when it is “justified without reference to the content of the regulated speech.”1 A law is content-based, and thus potentially violative of the First Amendment, when it is justified with reference to what the speech communicates. Thus,
[t]he First Amendment generally makes conveying facts and opinions into a constitutionally immunized activity. Normally, the government may punish people for causing various harms, directly or indirectly. But it generally may not punish speakers when the harms are caused by what the speaker said by the persuasive, informative, or offensive force of the facts or opinions expressed.2
A particularly relevant illustration of the range of application of the First Amendment is provided by the Supreme Court’s decision in R.A.V. v. City of St. Paul.3 In that case, the Court struck down the St. Paul Bias_Motivated Crime Ordinance, which prohibited placing “on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”4 Because this ordinance applied only to expression that insulted or provoked violence “on the basis of race, color, creed, religion or gender,” the Court held that “the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”5 The Court explained that “[t]he First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content‑based regulations are presumptively invalid.”6
This implies that harassment law must be understood as a content-neutral restraint on expression. It can outlaw expression to the extent that it is the equivalent of harm-causing conduct, but not to the extent that the harm is caused by the content of what is being expressed. Therefore, harassment law cannot ban or punish expression merely because of its offensive content.
The limited reach of harassment law was illustrated in the case of Saxe v. State College Area School District, in which the court reiterated that “[t]here is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”7 In striking down a school district’s harassment policy as unconstitutionally overbroad, the court explained,
There is, of course, no question that non‑expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. “Where pure expression is involved,” anti‑discrimination law “steers into the territory of the First Amendment.”8
Because “[t]he Supreme Court has made it clear . . . that the government may not prohibit speech under a ‘secondary effects’ rationale based solely on the emotive impact that its offensive content may have on a listener,”9 and because the court found that school district’s harassment policy did precisely that, it found the policy to be unconstitutional.
Given this understanding of the limits of harassment law, let us return to the question of how private universities and colleges can ensure that their harassment policies are consistent with their commitments to freedom of expression. Private universities and colleges must ensure that they are in compliance with the law of harassment. This means that they are legally required to take steps to ensure that women and members of minority groups are not subjected to conduct by other members of the academic community that would create an intimidating, hostile, or offensive environment for them. But, as we have just seen, this does not mean that they are required to suppress the expression of any individual’s viewpoint or opinion, regardless of how offensive it may be to members of the protected classes. In fact, the Department of Education has issued guidance for complying with the law that instructs universities and colleges that
in regulating the conduct of its students and its faculty to prevent or redress discrimination . . . (e.g., in responding to harassment that is sufficiently serious as to create a hostile environment), a school must formulate, interpret, and apply its rules so as to protect academic freedom and free speech rights.10
Thus, it is perfectly possible for private universities and colleges to meet their legal obligations while simultaneously preserving freedom of expression on campus. No university or college can correctly argue that it is forced by its duty to obey the law to restrain freedom of expression of its students or faculty.
Private universities and colleges that voluntarily adopt a commitment to maintain freedom of expression on campus have an ethical obligation to follow the Department of Education’s guidance to formulate their harassment policy “so as to protect academic freedom and free speech rights.” Fortunately, this is easily done. The university or college can simply insert the following two sentences into its harassment policy.
An expression of one’s religious, philosophical, literary, artistic, political, or scientific views regarding any protected category either in writing or verbally does not constitute harassment and is not prohibited by this policy. The University will dismiss any harassment allegation that it determines to be based solely on such expression.
The first of these sentences provides substantive protection for freedom of expression against restriction by the school’s harassment policy. The second provides protection against the self-censorship that results from the desire to avoid the costs and stresses of having to defend oneself against a charge of harassment if one speaks one’s mind. That is, the second sentence provides protection against the “chilling effect” of being subject to investigation for speaking.
1Bartnicki v. Vopper, 532 U.S. 514, 526 (2001).
2Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-altering Utterances,” and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1301 (2005).
3505 U.S. 377 (1992).
4St. Paul, Minn., Legis.Code ‘ 292.02 (1990).
5505 U.S. at 381.
6Id. at 382.
7Saxe v. State College Area School District, 240 F.3d 200, 204 (3d Cir. 2001). Justice Alito was at this time
8Id. at 206 (Citations omitted.).
9Id. at 209.
10U.S. Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, https://www2.ed.gov/about/offices/list/ocr/docs/shguide.html#Guidance.