A promise unkept
In spite of lip-service free speech codes, First Amendment rights are tenuous at private universities
When a Colorado College student posted a vexed racial statement on Yik Yak, he didn’t think he would face a two-year suspension. After all, the liberal arts private college had promised him, and all students, the freedom of speech.
Private universities across the country are guaranteeing prospective students that they will protect their right to free speech – but some are abandoning students when they choose to exercise it. Though private universities are not considered state agents legally bound to the constitutional rights of their students, like public universities, they too can be contractually obligated to uphold the promises made in their student handbooks, First Amendment lawyers say.
Acting as an arm of the government, public universities are constrained by the First Amendment and must protect students’ right to free expression and free speech. A private university, legally considered to be an “expressive association” with the right to express its own institutional views, can control its own message through various measures. Lately, those measures have included disciplining students for controversial or offensive speech or excluding speakers with opposing views from campus.
Since 2000, a growing number of “disinvitation” movements have occurred by students and faculty on private campuses to disinvite controversial speakers such as former Secretary of State Condoleezza Rice and retired neurosurgeon Ben Carson. Just this year, students at Scripps College – a private liberal-arts women’s college in California — are putting pressure on administrators to disinvite Madeleine Albright, the first female secretary of state, from speaking at commencement because she is a “white feminist” and “repeat genocide enabler.”
While disinvitation protests happen at both private and public universities, nearly 65 percent of reported incidents have occurred at secular or religious private institutions, according to the Foundation for Individual Rights in Education. These incidents are usually in response to the speakers’ beliefs or actions, such as an anti-abortion voting history or vocal opposition of Islam.
Though a private college may be able to disinvite certain speakers because of its freedom to disassociate certain views from the institution, some say that this is a sign of a larger problem – that when a university makes promises to students and faculty through a code of conduct or pledges to prospective students, it creates a binding contract that, in more and more cases, is being broken.
A contractual relationship
With the ability to place any set of moral, philosophical or religious teaching above a commitment to free expression, private universities have much more leeway in written codes. But many choose to promote their institutions as places where free speech is esteemed and protected – a promise, lawyers say, they are contractually bound to uphold when codified.
“Where a private college or university impliedly agrees to provide educational opportunity and confer the appropriate degree in consideration for a student’s agreement to successfully complete degree requirements, abide by university guidelines, and pay tuition, a contact exists.” U.S. District Judge Karen Angelini wrote in her 1998 opinion in Southwell v. University of the Incarnate Word. In the case, an Incarnate Word nursing student argued a breach of contract by the university for her failure in obtaining a degree on time because a clinical instructor did not pass her in the practical component of a course. The judge ruled in favor of the university, but set a precedent of a contract between students and a private institution.
Adam Goldstein, attorney advocate for the Student Press Law Center, said a relationship between a university and a student contains the three elements of a contract: offer, acceptance and consideration, which involves a payment of money – tuition checks.
“The statements a private university makes are part of what you’re buying when you pay your tuition,” Goldstein said. “You should get the value of what you paid for or you should get your money back, period.”
Under the legal principle “promissory estoppel,” if one party reasonably relies on the promises and representations of the other, and then the other reneges, the injured party is entitled to compensation to the extent of his or her reasonable reliance.
When private colleges or universities with free speech principles written into their codes discipline students because they engaged in controversial, offensive or hurtful speech, those students could suffer harm arising from lost tuition, room and board, employment offers and graduate school admissions, Goldstein said. Thus, if this happens, the student should be able to successfully obtain a legal remedy under promissory estoppel, he said.
Will Creeley, vice president of legal and public advocacy for FIRE, said he strongly believes that private universities that clearly and unambiguously promise freedom of expression to their students and faculty have an “obligation to live up to that promise in action.”
Still, courts have been divided on the issue, and have relied on a contextual set of circumstances to determine exactly how much weight they want to place upon the materials cited in terms of the contract, Creeley said.
“It would be very helpful if courts would hold colleges to those promises,” he said.
A private university’s own freedom of expression
Not all private universities promise students the right to free expression or speech, or the right to an open discourse of ideas. Some private colleges prioritize other ideals, such as sectarian or faith-based values.
“Private colleges have their own First Amendment rights of freedom of association,” Creeley said. “They can choose what values to advance or hold most dear, and that is their right to do so.”
Sarah Flanagan, vice president for government relations and policy development of the National Association of Independent Colleges and Universities, said having both private and public universities provides more choices for students who may pursue different values.
She said a private university’s freedom to associate helps preserve precious intellectual traditions, especially those rooted in faith traditions.
“All of this gives each American an amazing diversity of choice to fit their unique interests and passions,” Flanagan said.
Brigham Young University, for example, places its dedication to developing students’ Mormon faith and character, as well as assisting students in their quest for “perfection and eternal life.” The deeply religious, private research university consistently states in its promotional materials that its students are not guaranteed robust free expression rights, and that any expression is limited if it “seriously and adversely affects the university mission or the Church”
In a commitment to its students conducting their lives in a manner consistent with gospel principles, BYU has a policy prohibiting “homosexual behavior,” which states that it is “inappropriate” and “violates the Honor Code.” Such behavior, the policy says, includes not only sexual relations between members of the same sex, but “all forms of physical intimacy that give expression to homosexual feelings.”
But when a private university promises great First Amendment protection to its students and doesn’t live up to that promise, Creeley said it creates an injustice.
And private universities aren’t just banning offensive or hateful speech — even core protected political speech has been combatted, as some students at universities across the country have associated the phrase “Trump 2016” with racism, sexism and bigotry on campus.
In April, students at Emory University endorsed Republican presidential front-runner Donald J. Trump by chalking messages of support – such as “Trump 2016” and “Vote Trump” — on campus. A handful of students saw the messages as intimidation – associating them with racism, sexism and bigotry on campus — and claimed they felt “unsafe,” demanded through protests that Emory officials take action.
Emory President James Wagner obliged, despite writing “Emory stands for free expression!” in chalk.
In a university-wide email, Wagner said he intends to implement “immediate refinements to certain policy and procedural deficiencies, regular and structured opportunities for difficult dialogues, a formal process to institutionalize identification, review and [the] addressing of social justice opportunities and issues and commitment to an annual retreat to renew our efforts.”
Wagner also vowed to review security camera footage in order to identify those who made the chalkings. If they are found to be students, he said, they will go through the conduct violation process to address disciplinary action. If not, the university will press trespassing charges.
However, Elaine Justice, a spokeswoman for Emory, said the university is not pursuing disciplinary proceedings for those responsible for the chalking graffiti.
Emory repeatedly states its commitment to promoting freedom of expression within its student handbook. According to the university’s equal opportunity policy, Emory is “committed to the widest possible scope for the free circulation of ideas.”
Additionally, it is considered a violation of Emory’s Undergraduate Code of Conduct to interfere with “the rights of others to free expression.”
Justice said that chalkings by students are allowed as a form of expression on campus, but must be limited to certain areas and must not deface campus property. She said the Trump chalkings did not follow set guidelines, and that is what violated university policy, not the conduct.
Students at private colleges have also put pressure on administrators to prevent speakers whose ideas are controversial from lecturing on campus.
In October 2015, Williams College – a private liberal arts college in Massachusetts — rescinded its invitation to Suzanne Venker, a longtime critic of feminism, from speaking on campus in response to student backlash over her views.
In February, the private college did it again. Williams President Adam Falk disinvited writer John Derbyshire, whose views have previously been called racist and sexist, from “Uncomfortable Learning” – a student-run speaker series specifically developed to bring controversial viewpoints to campus.
Though Williams’ Code of Conduct states that it is “committed to being a community in which all ranges of opinion and belief can be expressed and debated,” Falk cited hate speech when explaining his decision to revoke Derbyshire’s invitation to speak on campus.
“Many of [Derbyshire]’s expressions clearly constitute hate speech, and we will not promote such speech on this campus or in our community,” Falk said in a statement.
With Falk demonstrating that Williams administrators can be the sole deciders of what speech is allowed on campus, the college’s promise to free speech has gone unkept.
“Bait and switch” policies
Creeley said he fears that colleges are oftentimes attempting a classic “bait and switch” by promising free expression, but restricting it – sometimes even within the same code of conduct.
For example, the private Colorado College writes in its student guide, “Academic institutions exist for the transmission of knowledge, quest for truth, the development of students, and the general well-being of society. In the pursuit of these ends, all members of the college community have such basic rights as freedom of speech, freedom of press, freedom of peaceful assembly and association, freedom of personal beliefs, and freedom from personal force and violence, threats of violence and personal abuse.”
By promising First Amendment protection to its students, Colorado College could reasonably expect that students will rely on this promise when choosing to speak on controversial issues, Creeley said.
But Colorado College also has policies that contradict the premise of free speech, Creeley said, like its “abusive behavior” policy that prohibits any act “which produces ridicule, embarrassment, harassment, intimidation or other such result.”
In November 2015, Colorado College suspended and banned a student from campus until Aug. 28, 2017 for a six-word comment on the anonymous social media application Yik Yak under the abusive behavior policy.
Thaddeus Pryor, a junior at the college, was disciplined for his anonymous reply to the comment “#blackwomenmatter” on Yik Yak that read, “They matter, they’re just not hot.”
FIRE wrote in a letter to Colorado College following this suspension that “speech that produces ‘embarrassment’ or ‘ridicule’ must generally be fully protected by Pryor’s freedom to expression” and urged the private institution to honor its moral and contractual obligation to keep the promise of freedom expression that it makes to students.
On appeal, the college reduced Pryor’s suspension to six months. During this time, he is banned from campus and unable to attend classes. He is also forbidden from taking classes at other institutions for academic credit in the meantime.
Although Colorado College is private, and not legally bound by the First Amendment, it repeatedly states its commitment to freedom of expression in its student handbook and promotion materials.
Leslie Weddell, a spokeswoman for Colorado College, said all members of the college community have basic rights such as freedom of speech, of the press and peaceful assembly and association.
But the students also have the freedom of personal beliefs, and freedom from personal force and voices, threats of violence and personal abuse, she said.
“The exercise of such rights is subject to the college’s obligation to maintain an atmosphere consistent with the purposes of academic freedom, social responsibility and civic order,” Weddell said.
She said civility, consideration and tolerance must shape the students’ interactions with each other, and these ideals are valued highly at the institution.
Creeley said what happened to Pryor is just one of the “heartbreaking stories” that FIRE has been involved with where students are attending an institution under “false pretenses.” He said in instances like this, private universities mislead their students by making them believe they have full First Amendment protection — but then discipline them the minute they say or do something the administration doesn’t like.
A harsh disconnect
“I used to believe that open discourse was a value all Americans hold dear,” Harvard University sophomore Rachel Huebner wrote in an opinion piece for the Harvard Crimson. “That it was understood that without a marketplace of ideas, our society simply could not flourish. But then I started college.”
Huebner described how she felt free speech was under attack at her university and others, for the sake of other’s feelings.
Though Harvard encourages students to “respect ideas and their free expression, and to rejoice in discovery and in critical thought” in its mission statement, Huebner said her experiences led her to believe the current culture on Harvard’s campus is defined “not by open expression – but by sensitivity.”
Until the courts decide that private universities have to keep the promises they make to their students, free speech advocates believe many high schoolers will choose a college under what they see as falsities.
Goldstein said there is no bigger disconnect between promises and what is delivered than with private universities.
“It’s tough to spend four years of your life paying money to someone who lied to you,” he said. “Many [private universities] say ‘here’s a bunch of things we’re going to do for you, but by the way, we don’t promise to do any of them for you.’”
In the future, when courts are presented with this issue, Goldstein said he hopes “they will remember we’re talking about a contract that’s for an immense amount of money targeted at a population that categorically lacks the time and free-market choice to just walk away.” He said students make up an incredibly vulnerable population because they are incurring debt that some of them may have for the rest of their lives.
Goldstein said the courts have historically looked for methods to let colleges have their way, and that has consistently been at the expense of students. He said he expects that this occurrence has its legal limit, and that courts will start considering this relationship between the universities and the students for what it is: a legal contract.
“I think the courts will find it’s unconscionable to say that you can take hundreds of thousands of dollars from a 20-year-old and owe them nothing,” Goldstein said.
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