Private Institutions: Bound By The Constitution?

The First Amendment to the US Constitution protects freedom of speech, and this is particularly important on college campuses, where free speech and the exchange of ideas are fundamental. While public colleges are legally bound to respect the constitutional rights of their students, private colleges are not directly bound by the First Amendment, as it limits government action. However, private colleges are still legally obligated to uphold the promises they make to students, including any commitments to freedom of expression.

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Private universities and free speech

Private universities are not government entities and are not directly bound by the First Amendment, which limits government action. However, the majority of private universities have traditionally viewed themselves as bastions of free thought and expression. If a private university advertises itself as a place where free speech is protected, then it should be held to the same standard as a public institution.

Private colleges and universities are contractually bound to respect the promises they make to students. Many institutions promise freedom of expression in promotional materials and student conduct policies but then deliver selective censorship. They may not be bound by the First Amendment, but private institutions are still legally obligated to provide what they promise. Private institutions may not engage in fraud or breach of contract.

If a private university states clearly and publicly that it values other commitments more highly than freedom of expression, that institution has more leeway in imposing its views on students, who have given their informed consent by choosing to attend. For example, a private college may place a particular set of moral, philosophical, or religious teachings above a commitment to free expression. The freedom to associate voluntarily with others around common goals or beliefs is an integral part of a pluralistic and free society.

Private institutions that receive federal funding must also adhere to federal anti-discrimination laws, such as those applicable under Title IX. There are some exceptions to this rule. Private colleges and universities that accept government funding or engage closely with the government may be required to adhere more closely to the First Amendment. State governments may also pass statutes requiring private universities to respect free speech rights as a matter of state law, even when the US Constitution imposes no such requirement. For example, California law applies First Amendment protections to both public and private universities.

Legally obligated to uphold promises

Private colleges and universities are not directly bound by the First Amendment, which limits only government action. However, they are still legally obligated to provide what they promise. If a private college advertises itself as a place where free speech is esteemed and protected, then it should be held to the same standard as a public institution.

Private institutions are contractually bound to respect the promises they make to students. Many institutions promise freedom of expression in university promotional materials and student conduct policies but then deliver selective censorship. They may not be bound by the First Amendment, but they are still legally obligated to uphold promises and provide what they promote.

Private institutions may not engage in fraud or breach of contract. If a private college wishes to place a particular set of moral, philosophical, or religious teachings above a commitment to free expression, it has every right to do so. The freedom to associate voluntarily with others around common goals or beliefs is an integral part of a pluralistic and free society. However, if a private institution promises free speech, it must be held to that standard.

The First Amendment does not protect behaviour on campus that crosses the line into targeted harassment or threats or creates a pervasively hostile environment for vulnerable students. Determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis. Private institutions are not exempt from this and must uphold the same standards as public institutions if they promise to do so.

In the case of Harvard University, the court was dubious that the institution could hide behind the First Amendment to justify avoidance of its Title VI obligations. Judge Stearns conceded that "it cannot be that the federal government could require private universities to enforce policies against speech that the government itself could not enforce at a public middle school". This indicates that private universities are not exempt from upholding promises and constitutional rights, even if they are not directly bound by the First Amendment.

The First Amendment and private institutions

The First Amendment to the US Constitution protects citizens' freedom of religion, assembly, and speech, as well as their right to petition the government for redress and to be free from government establishment of religion. However, the First Amendment only limits government action, and private institutions are not directly bound by it. This means that private schools and universities are generally not legally compelled to follow the same First Amendment regulations as public schools and universities.

Private schools, for instance, are not required to abide by the same First Amendment rights as public schools because they do not receive federal funding. As such, private school students do not have the same First Amendment rights as public school students. While public universities must uphold the First Amendment rights of their students, private universities are not bound to do so.

However, private institutions are still legally obligated to provide what they promise. Many private institutions promise freedom of expression in their promotional materials and student conduct policies, and they are contractually bound to respect these promises. Additionally, private universities that have chosen to honor the spirit of the First Amendment in their policies must live up to that commitment. For example, they cannot selectively punish students based solely on their speech being for or against a particular opinion or discussing certain topics.

The situation for free speech on college campuses may be evolving. Recently, the Trump administration issued an executive order commanding universities receiving federal research funds to promote free and open debate on their campuses. While this order does not explicitly mention private universities, it suggests that the federal government may be increasingly interested in protecting speech at all institutions of higher learning, regardless of their public or private status.

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Title VI and private universities

Private institutions, including universities, are generally not bound by the First Amendment, which limits only government action. However, private universities that accept government funding or work closely with the government may be required to adhere more closely to the First Amendment. For example, California law applies First Amendment protections to both public and private universities.

The question of whether Title VI requires private universities to restrict student speech has been the subject of debate and legal analysis. Some argue that requiring a private university to restrict speech that would be protected at a public university raises constitutional questions. On the other hand, it has been suggested that the First Amendment may provide students at public universities with different rights than those at private universities.

While private universities are not required to uphold First Amendment protections in the same way as public universities, most private universities adhere to free speech principles and support academic freedom. They are also contractually bound to respect the promises they make to students, including any commitments to freedom of expression.

The Supreme Court's role

The Supreme Court plays a pivotal role in interpreting and enforcing the Constitution, including in cases involving private institutions. While private institutions, such as universities, are not directly bound by the First Amendment, which limits government action, their actions can still be scrutinized by the Court.

The First Amendment, as part of the Constitution, protects speech and expression, even if it is offensive in content. The Supreme Court has interpreted this to include symbolic expression, such as the display of symbols like swastikas, peace signs, or burning crosses, which are constitutionally protected in a public place. The Court has also upheld the right to burn the American flag as a form of symbolic expression. These rulings set a precedent for how the First Amendment is applied in practice, which extends beyond just the government to private institutions as well.

In the context of education, the Supreme Court has recognized the importance of protecting Constitutional freedoms, especially regarding free expression. Supreme Court Justice Robert Jackson emphasized the role of schools in educating young citizens and the need to protect their individual freedoms. This includes the freedom to invite speech, debate, and protest offensive or disagreeable ideas without government censorship. While public colleges and universities are legally bound to respect the First Amendment rights of their students, private institutions are not directly bound by it.

However, private colleges and universities are still expected to respect their commitments to students. If a private institution promises freedom of expression in its promotional materials and policies, it should be held to that standard, even if it is not constitutionally mandated. The Supreme Court has weighed in on this issue, with Justice Antonin Scalia applying a rule of statutory construction, requiring statutes to be interpreted consistently. This means that private universities should not be held to different standards than public ones regarding speech restrictions.

Furthermore, the Supreme Court has addressed the issue of funding for student publications. While public colleges are not obligated to fund these publications, if they choose to provide funds, they cannot selectively withhold them based on controversial viewpoints. The Court's rulings in these areas help clarify the boundaries of Constitutional protections and ensure that private institutions, while not directly bound by the First Amendment, still operate within a framework that respects Constitutional values.

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