Promising the First Amendment: (De)Regulating Speech in Higher Education (WP-24-27)
Max Schanzenbach and Kimberly Yuracko
The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This paper argues for the latter approach largely on pragmatic grounds. In essence, our argument is grounded in the realities of university organizational behavior which make it difficult for universities to enforce speech codes in a manner that complies with their regulatory and contractual obligations. Ambiguous codes, informal process, and political homogeneity among decision-makers inevitably results in inconsistent regulation of speech. These problems can be mitigated by committing to the First Amendment, which would both clarify and constrain university speech regulations by incorporating a large body of caselaw, some of which bears directly on higher education. Such clarity would limit the scope of university action, provide a basis for legally required consistency, and be more readily amenable to external review by courts and federal regulators. Experience with the First Amendment in public universities suggests that such a commitment will not have deleterious consequences for campus life.