Table of Contents
Video Lesson: How the First Amendment Limits Public Colleges and Administrators
First Amendment for College Administrators
Lesson 1: Public Colleges: Legal Landscape and Landmark Cases
Video 3: How the First Amendment Limits Public Colleges and Administrators
Video Transcript
On public campuses, the First Amendment to the U.S. Constitution prohibits the government — including public college and university administrators — from restricting students’ and faculty’s right to speak or express themselves. Private colleges and universities are not bound by the First Amendment, but often promise their students free speech nonetheless. Whether public or private, institutions of higher education play a vital role in preserving free thought in our free society.
Consequently, it’s important for you to know what to do when you’re asked to intervene in a situation where free speech rights could be involved. These questions come up every day on campuses large and small, all across the country. For example:
- A politician complains on X about a faculty member’s syllabus, and hundreds of people start tweeting at your office asking you to “do something” and fire the professor.
- John Doe reports Jane Doe for “bias,” claiming Jane said something “hateful and offensive.”
- A student has a heated back-and-forth with a transportation office worker over their campus parking ticket. The employee asks you to discipline the student for being “incredibly rude and disrespectful.”
In these scenarios, the expressive conduct isn’t accompanied by any unlawful behavior — it is pure speech protected by the First Amendment and, probably, even your school’s own policies At a public college or university, you cannot punish this speech — even if students, administrators, members of the public, donors, or even legislators dislike it.
Later on in this training, we’ll dive deeper into the types of actions administrators must be mindful of to protect their community members’ First Amendment rights. For now, let’s keep in mind two large categories: policy and enforcement.
First, policy: the government has the power to regulate individuals’ conduct by establishing laws, ordinances, rules, or regulations that give people notice of what the government will permit and what it will punish. Many college or university policies affect speech, but it will be incumbent upon you to make sure they do not violate the First Amendment. We often see policies do this by purporting to ban “hateful” social media posts, jokes that might be “offensive,” or force students or faculty to be “civil” when talking to each other. Bias reporting systems also often suggest that the college or university will investigate speech some people find offensive, even if there’s no actionable misconduct. These kinds of policies chill student and faculty speech in violation of the First Amendment. More on this in later videos.
Second, enforcement: the government also has the power to take direct action against individuals for past conduct. In order to fulfill your obligations to the First Amendment, it’s important that you not investigate or punish students or faculty when they’ve done nothing more than exercise their right to speak. This means you cannot censor students’ or faculty’s protected speech, punish them directly for their speech, or retaliate against them in other ways—say, deny them benefits available to other students or faculty—because you disagreed with or disliked their speech.
So what happens if you mess this up? If, by implementing a policy that chills speech, or punishing a student or professor for their protected expression, you violate someone’s First Amendment rights? You expose your school to litigation and, potentially, yourself to individual liability. Federal law gives people the ability to sue government actors who violate their rights, to both stop ongoing rights violations, and obtain damages for past violations. And individual administrators may find themselves on the wrong end of a civil rights lawsuit if they violate a clearly established right of which a reasonable person in their position would have had fair notice. This is all to say: you’re going to want to pay attention here.
The legal obligation to uphold the First Amendment, with one notable exception, applies only to public colleges and universities. Administrators at private schools are not government actors and are not bound by the Constitution. Private schools, therefore, are largely bound only by their own policies. Because free inquiry is a foundation of higher education, many private schools promise their students free speech and many accreditors require such policies for this reason as well. Even private schools, then, who are obligated to uphold their own policies and standards for accreditation, would do well to follow the First Amendment’s guidance.
The one place where even private schools must protect students’ First Amendment rights is California: California’s education code — in a statute known as the “Leonard Law” — prohibits “private postsecondary educational institution[s]” from making or enforcing any rule that subjects students “to disciplinary sanctions solely on the basis of conduct that is speech … [that] is protected from governmental restriction by the First Amendment.” So whether at a public or private school, if you’re watching this from California, it all applies to you.
Your obligation as an administrator in higher education is to protect, not punish, protected expression. The Supreme Court has long made clear that the very future of our country “depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues[.]” So how do we recognize First Amendment-protected speech and differentiate it from unlawful conduct, like true threats, or discriminatory harassment, that you need to address? By the end of this tutorial, you’ll be good at spotting some key differences between protected speech and misconduct, so you can administrate accordingly.