Freedom of Expression at the Private University 1

TLDR: In this paper, the authors argue that private universities have a duty to act with integrity, which means that they must fully honor the public representations it makes to its students and faculty.

Abstract: Private universities are not bound by the First Amendment, which restrains only state action. This leaves them free to adopt whatever restrictions on freedom of expression they deem consistent with their mission. However, private universities a have duty to act with integrity, which means that they must fully honor the public representations it makes to its students and faculty. This implies that private universities must refrain from making conflicting representations that cannot be simultaneously fulfilled. Most universities represent themselves as committed to both free of expression on campus and to providing an inclusive and welcoming educational environment for people of all backgrounds. However, the expression of certain ideas can offend some members of the university community and make them feel unwelcome. This creates a situation in which it is difficult, if not impossible, for the university to live up to both of its representations. I argue that this implies that private universities are ethically obligated to specify which of these two conflicting obligations it considers more important—which one will trump the other in case of conflict. I further argue that private universities that resolve this situation by giving priority to freedom of expression implicitly assume two further obligations: (1) to adopt a policy stating that no member of the academic community will be subject to investigation for an academic infraction solely on the basis of the ideas that they express, and (2) to revise their harassment policies to reflect this commitment. This is because a commitment to freedom of expression entails a commitment to eschew policies that have a “chilling effect” on expression. In the current academic environment, free speech is suppressed not by the conviction and punishment for academic infractions, but by the threat of being investigated for such infractions, especially for violating the university’s harassment policy. Thus, a commitment to freedom of expression requires revising university harassment policies to bar investigations based on the content of purely verbal or written expression.