Sovereignty and First Amendment rights of higher education institutions: An affirmative and institutional approach

ABSTRACT

This article offers an analysis of how, and to what extent, public institutions of higher learning, as agents of one sovereign, could assert free speech rights against the federal government, another sovereign. This work expands the First Amendment and government speech discourse by contributing a novel examination of Supreme Court precedent and the Court’s language addressing the expressive activities of universities under academic freedom. This work also situates itself theoretically in the Madisonian conception of the First Amendment Free Speech Clause, and makes the case that public universities should be recognized as institutions that occupy a special constitutional status within the doctrine. The article’s significance is underscored by the fact that the current political climate raises the specter of increased regulation and policing of the expressive activities of universities.

KEYWORDS:

• First amendment
• free speech
• government speech
• academic freedom

Notes

1. Shear, “Trump Says.”

2. Ibid.

3. Proclamation No. 13864, 84 Fed. Reg. 11401, March 21, 2019. See also Schwartz, “Trump and Universities in Fight Over Free Speech, Federal Research Funding.”

4. See Peters, “In Ann Coulter’s Speech Battle.”

5. See Krantz, “‘Bell Curve’ author attacked by protestors at Middlebury College.” In March 2017, students at Middlebury College violently confronted conservative social scientist Charles Murray during a speaking engagement, which ultimately resulted in the cancellation of the talk.

6. Daniels, “Cancellation of Christian Speaker’s Event.”

7. Keilman, “Conservative Activists Accuse DePaul.”

8. Ibid.

9. Woodhouse, “Impact of Pell Surge.”

10. The “unconstitutional conditions doctrine” holds that a state actor cannot constitutionally condition the receipt of a government benefit – even ne that the person has no right to – on a basis that infringes on the person’s constitutionally protected right, especially the person’s interest in freedom of speech. See Perry v. Sinderman, 408 U.S. 593, 597 (1972); Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59 (2006).

11. Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

12. Ibid., 473–78. Moreover, the Court rejected arguments that in order for the government speech doctrine to apply, the City must adopt the public displays as its own and articulate a particular message with such displays. In fact, the Court held that governments do not have to formally adopt or develop any message at all, as long as the government exercises final approval over expression on its property.

13. Walker v. Sons of Confederate Veterans, 135 S.Ct. 2239 (2015).

14. Ibid., 2253.

15. See infra under Public Colleges and Universities: State Institutions with Free Speech Rights? for further discussion. See also Gray, “Academic Freedom on the Rack.” The author notes that the Supreme Court has never stated whether constitutional academic freedom applies to private universities, nor has the Court applied constitutional academic freedom to private institutions.

16. See University of Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990).

17. Ibid., n. 6.

18. Ibid.

19. For example, in University of Pennsylvania, 493 U.S. 182, the university, a private institution, asserted a First Amendment right of academic freedom against disclosure of tenure review files. The Court held that the university’s reliance on academic freedom cases was misplaced because those cases addressed direct content of the speech engaged by state universities, and the university failed to allege direct content regulation. Unfortunately, the Court never articulates the scope of this freedom under the First Amendment: “we need not define today the precise contours of any academic freedom right against governmental attempts to influence the content of academic speech through the selection of faculty or by other means … ”. Ibid., 198.

20. Byrne, “Academic Freedom,” 300.

21. See Grutter v. Bollinger, 559 U.S. 306, 329 (2003) (the Court defers to a public institution’s judgment on the benefits of a diverse class, including the benefits of a diverse “exchange of ideas”); and Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (“The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection”).

22. See Lloyd and Park, “The Constitutional Case,” 235–47. See also Sunstein, Democracy and the Problem of Free Speech; Breyer, Active Liberty. Justice Breyer contends that constitutional interpretation and application should take greater account of the Constitution’s democratic nature – participatory self-government and democratic deliberation – when courts interpret the Constitution.

23. See Lloyd and Park, “The Constitutional Case,” 235–247; Sunstein, Democracy and the Problem of Free Speech; Breyer, Active Liberty.

24. John, “From Franklin to Facebook,” 156–72.

25. Sunstein, note 22 above, 18–9.

26. See Fagundes, “State Actors as First Amendment Speakers,” 1668.

27. Ibid.

28. See Parker, “50 State Review.”

29. California Constitution, Article IX, Section 9.

30. Idaho Constitution, Article IX, Section 10.

31. See Horwitz, “Universities as First Amendment Institutions,” 1524–152. The author contends that there is very little distinction between public and private institutions because a minority of states have projected First Amendment norms upon private institutions, and both share common institutional features. See also Chemerinsky, “More Speech is Better.”

32. See Cal. Educ. Code § 94367(a) – (f).

33. Rather than through legislative means, a minority of states have applied state constitutional free speech provisions to private universities. See State v. Schmid, 423 A.2d 615 (N.J. 1980); Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981).

34. See Cal. Educ. Code § 94,367(a)-(f). Under the Leonard Law, students at private institutions cannot seek monetary awards; they are only eligible for attorney’s fees, and declaratory and injunctive relief. Moreover, the law states that private institutions must “make or enforce a rule subjecting a student to disciplinary sanctions,” leaving out language pertaining to “administrators” that is found in a similar California law applied to public institutions. See Ross, “Keeping Free Speech Free.” The author contends that the Leonard Law inadequately protects the speech of students at private universities from administrative censorship.

35. Corry v. Stanford, No. 740309 (Cal. Super. Ct. February 27, 1995).

36. Ibid.

37. See Eule and Varat, “Transporting First Amendment Norms,” 1598–99.

38. See Trachtenberg, “Private Universities and the First Amendment.” The author contends that for some private institutions, optimal results to further the institution’s mission stem from adopting rules different from campuses that are bound by the First Amendment, including the consideration of the benefits associated with excluding certain speakers. See also generally Eule and Varat, note 37 above.

39. “The Mission of the California State University,” About the CSU.

40. “Mission,” Caltech at a Glance.

41. See Gray, note 15 above, 1157. The author notes that the Supreme Court has justified constitutional academic freedom in terms of a content-neutrality principle, and that constitutional academic freedom only applies to state actors when they are both “speaker and regulator.”

42. Eule and Varat, note 37 above, 1617–18.

43. See Stewart, “Or of the Press,” 634. The author argues that the Free Press Clause should be understood as protecting the press industry because “[t]he primary purpose of the constitutional guarantee of a free press was … to create a fourth institution outside the Government as an additional check on the three official branches”; Branzburg v. Hayes, 408 U.S. 665, 721 (1972) (Douglas, J., dissenting). Justice Douglas argues that professional journalists are constitutionally entitled to a privilege not to testify about their sources because the press-as-industry “has a preferred position in our constitutional scheme.” See also Dyk, “Newsgathering, Press Access,” 931–32; West, “Awakening the Press Clause,” 1027–29. The author embraces the view that the press as an institution enjoys special protection under the First Amendment.

44. Schauer, “Towards an Institutional First Amendment,” 1274. See also Gray, note 15 above; Horwitz, note 31 above, 1510–16. The author suggests that institutions such as universities – but also libraries, religious organizations, and the press – “be recognized as “First Amendment institutions” and afforded significant presumptive autonomy and deference by the courts.

45. Rabban, “Functional Analysis of ‘Individual,’” 268.

46. Ibid.

47. Horwitz, note 31 above, 1510.

48. Ibid., 1511 (quoting Grutter v. Bollinger, 559 U.S. 306, 328 (2003)).

49. Ibid., 1511. More specifically, the author notes that “[a]n institutional approach thus suggests that courts should, in the first instance, defer to those institutions’ capacity for self-governance rather than attempt to impose an ill-fitting doctrinal framework based on the idea that one set of First Amendment rules can and should apply to the radically different social institutions in which speech takes place. To the extent it is necessary to build some set of constitutionally prescribed limits around the behavior of those institutions, courts should build from the bottom up, taking their cue from the norms and practices of the institution in question and from the social values served by the institution.”

50. Sweezy v. New Hampshire, 354 U.S. 234 (1957).

51. According to Merriam-Webster, McCarthyism is defined as: “a mid-20th century political attitude characterized chiefly by opposition to elements held to be subversive and by the use of tactics involving personal attacks on individuals by means of widely publicized indiscriminate allegations especially on the basis of unsubstantiated charges.” https://www.merriam-webster.com/dictionary/McCarthyism). Historian Albert Fried notes that unlike previous red scares, McCarthyism went on for decades and became a whole way of life, subjecting Americans to loyalty oaths, “black lists” and criminal prosecutions for their perceived political affiliations and ideology. See Fried, McCarthyism: The Great American Red Scare.

52. Sweezy, 354 U.S. at 257–60.

53. Fried, note 52 above, 141 (citing the Association of American Universities’ position paper titled “Rights and Responsibilities of Universities and Their Faculties, March,” 1953).

54. Sweezy, 354 U.S. at 250 (“Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die”).

55. Ibid., 263.

56. Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).

57. Ibid., 592.

58. Ibid., 603.

59. Ibid. (emphasis added). The Court further notes, “‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.’”.

60. See Grutter, 559 U.S. 306 (in deferring to the Law School’s judgment on the benefits of diversity, the Court articulates the many benefits derived from a diverse law student body and a “robust exchange of ideas,” including the promotion of cross cultural understanding, the breaking down of racial stereotypes, and the promotion of learning outcomes that better prepare students for an increasingly diverse work force).

61. Regents of the University of California v. Bakke, 438 U.S. 265 (1978). The Court ruled that although the university’s use of racial quotas was unconstitutional, the use of race as a criterion in admission was constitutional.

62. Ibid., 312.

63. Ibid.

64. Ibid., 313.

65. See Grutter, 559 U.S. 306.

66. Desilver, “Supreme Court Says States Can Ban Affirmative Action.”

67. Norman, “Americans’ Support for Affirmative Action Programs Rises.”

68. Grutter, 539 U.S. at 329.

69. Ibid., 328 (“Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits”).

70. Fisher v. University of Texas at Austin 136 S. Ct. 2198 (2016).

71. Ibid., 2214.

72. Ibid.

73. Ibid.

74. Sweezy, 354 U.S. at 263.

75. Rust v. Sullivan, 500 U.S. 173 (1991).

76. Ibid., 192.

77. Ibid., 193 (“In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other”). See also Grove City College v. Bell, 465 U.S. 555, 575–76 (1984) (“Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept”). The Court held that requiring Grove City College, a private college, to comply with Title IX’s prohibition of discrimination as a condition for its continued eligibility to participate in a Department of Education’s grant program that provided financial assistance to many of the College’s students did not infringe on the First Amendment rights of the College.

78. National Endowment for the Arts v. Finley, 524 U.S. 569, 572 (1998).

79. Ibid., 583.

80. Ibid., 587.

81. Ibid., 587–88 (“So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities”).

82. U.S. v. American Library Association, 539 U.S. 194 (2003).

83. Ibid., 210.

84. Ibid., 211. In response to Justice Stevens’s dissent, the majority later posits “assuming again that public libraries have First Amendment rights – CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them to the right to provide their patrons with unfiltered Internet access.” Ibid., 212.

85. Ibid., 226 (Stevens, J., dissenting).

86. Ibid., 225 (Stevens recognizes that libraries have broad discretion when making decisions as to “what to include in, and exclude from, their collections. That discretion is comparable to the ‘business of a university … to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’” (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in result)).

87. Fagundes, note 26 above, 1646.

88. U.S. v. American Library, 539 U.S. at 226 (Stevens, J. dissenting) (“Given our Nation’s deep commitment ‘to safeguarding academic freedom’ and to the ‘robust exchange of ideas,’ a library’s exercise of judgment with respect to its collection is entitled to First Amendment protection”).

89. Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006). As Rory Thomas Gray points out, FAIR’s membership was predominantly (two-thirds) made up of public law schools or their faculties, but the Court failed to distinguish different constitutional rights that apply to public and private universities. See Gray, note 15 above, 1133–34, 1168.

90. Rumsfeld, 547 U.S. at 53.

91. See Ibid., 58-68.

92. Ibid. at 60 (“Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds”).

93. See Ibid., 59–68 (the Court cites leading Supreme Court precedent establishing the principle that freedom of speech prohibits the government from compelling speech in order to contrast how the act in question “does not require any similar expression by law schools,” holding that the act “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” The Court further concludes that the Solomon Amendment does not unconstitutionally require law schools to accommodate the military’s message nor does the expressive nature of the conduct regulated by the act bring that conduct within First Amendment protection).

94. Ibid. at 62.

95. Ibid. at 64.

96. Ibid. at 66 (citing U.S. v. O’Brien, 391 U.S. 367 (1968)).

97. Ibid. at 68. In addition to the striking down FAIR’s free speech claims, the Court ruled against FAIR and their argument that the Solomon Amendment violates law schools’ freedom of expressive association.

98. Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 139 (1973) (Stewart, J. concurring).

99. Fagundes, note 26 above, 1668.

100. Proclamation No. 13864, 84 Fed. Reg. 11401 (March 21, 2019) (Section 3 of the Executive Order).

101. U.S. v. American Library, 539 U.S. at 227 (Stevens, J., dissenting).

102. Sweezy, 354 U.S. at 263.