As questions regarding the freedom of expression on college campuses grip the country, courts adjudicating First Amendment cases in the higher education setting are struggling to determine the appropriate legal framework. Some courts are relying on Supreme Court cases from the K–12 setting as well as the public employment context; in addition, an increasing number of courts have allowed schools to punish students whose speech is inconsistent with the “professionalism” standards of the relevant area of study. Public institutions of higher education contend that regardless of the relevant framework, their determinations that speech restrictions are needed to improve their learning communities are entitled to substantial deference.
This Article concludes that the authority of public universities to restrict student speech should be quite narrow. In reaching this conclusion, the Article confronts and rejects arguments that anti-discrimination laws require censorship, or that public universities should receive broad institutional deference to restrict student speech they find offensive in the name of improving the educational environment. Instead, the only deference public universities receive should be limited to speech that occurs in the context of curricular activities, and even in this context, deference should not be absolute. Courts should regard with particular skepticism claims that student speech can be punished when it is inconsistent with “professional” standards.
Public institutions are not powerless to advance speech that promotes their core values of inclusion and tolerance. With a continued commitment to foundational free speech principles, public schools should use the occasion of offensive speech as an opportunity to teach and engage with their students and reaffirm their commitment to their core values and mission.