When we talk about the First Amendment and freedom of expression in higher education, our analysis typically focuses on individual rights. We talk about the rights of unpopular speakers to express their views, the rights of students to invite such speakers, the rights of protesters to respond to or disrupt those with whom they disagree, and the rights of faculty members to say or teach without interference. But what about the First Amendment rights of the college or university itself, as an institution? Does a college or university have First Amendment rights in cases like these?
The traditional answer in these cases is no. While university speakers, students and faculty members have First Amendment rights, the university is a mere neutral forum. The university provides the setting, the context, in which individuals seek to express, protect and vindicate their rights, but it is not itself viewed as a significant First Amendment actor. The university can be sued for lack of neutrality, but in free expression cases, it basically serves as the arena, not as a player with its own unique values and interests.
I believe this is wrong, both as matter of law and of fundamental principle. I believe that colleges and universities have strong First Amendment rights as institutions, and that those institutional rights are so important to a free society, they may, in some instances, trump the rights of many individuals who seek to speak in the university setting.
The foundation of this robust idea of institutional First Amendment rights lies in Justice Frankfurter’s famous concurrence in the case of Sweezy v. New Hampshire, 354 U.S. 234 (1957). In Sweezy, a state attorney general sought to question an economist and magazine editor who had delivered a lecture on Marxism at the University of New Hampshire. Sweezy refused to answer, was held in contempt and ultimately took his case to the U.S. Supreme Court, where his contempt conviction was overturned.
The Sweezy decision is often cited as the foundation of the individual First Amendment right of faculty members to teach free from government interference, but a careful reading of Frankfurter’s opinion reveals that it is really the university, not the individual, that possesses the most important rights under the First Amendment. Frankfurter noted that the existence of our free society depends on “free universities.” “This means,” he continued, “the exclusion of governmental intervention in the intellectual life of a university.”
How can we protect universities from unconstitutional intervention? By respecting what Frankfurter’s opinion, quoting a South African study on academic freedom, called “‘the four essential freedoms’ 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.” In Frankfurter’s view, Sweezy had a right to speak at the University of New Hampshire not because of his own right to free expression, but because the university has a right to control its own intellectual environment, and thus the right to choose who will and who will not speak in its halls, free from government dictates.
Justice O’Connor reasserted this strong view of university rights and university autonomy in the landmark affirmative action case Grutter v. Bollinger, 539 U.S. 306 (2003). In Grutter, O’Connor noted that in the United States, “universities occupy a special niche in our constitutional tradition.” The Supreme Court, she wrote, has long recognized that universities have a right of “educational autonomy” that is “grounded in the first amendment.” This includes, she wrote, quoting Justice Powell in Bakke, the “freedom of a university to make its own judgments as to education.”
These basic constitutional principles have never been questioned, but their implications have long been ignored. If, as Sweezy, Bakke and Grutter recognize, universities occupy a special and protected place in First Amendment jurisprudence, with a right to autonomy and to control their own educational and intellectual environments, the implications are profound. On this reading, universities do not have to be a passive neutral forum. They may, instead, exercise a strong First Amendment right to define for themselves the appropriate educational and intellectual setting for learning, free from interference by legislatures and courts. This means that universities may, contrary to current practice, exclude some speakers whose views have no place in an intellectual setting devoted to science, rational argument and the creation of a proper learning environment.
How might this robust First Amendment institutional right to autonomy play out in specific cases? Imagine a white supremacist is invited by a student group to speak at a public university. Under traditional neutral forum analysis, the university does not have a right to exclude him or her. But if, as Sweezy, Bakke and Grutter suggest, the university has a right to control its intellectual and educational environment, it may exclude a speaker it believes will harm the academic environment it seeks to maintain. If the university believes the speaker will undercut the seriousness of intellectual discourse or the right to students to study free from harassment, they do not need to provide a forum for that person to speak.
This notion of strong institutional rights under the First Amendment has not been tested in the courts. It may be that when push comes to shove, the courts will insist on content neutrality even if it interferes with a university’s autonomous right to create a proper intellectual and learning environment. But we won’t know this, of course, until universities try to assert and protect what Justice O’Connor called their right to “educational autonomy” based on their “special niche in our constitutional tradition.”
John Kroger served as the president of Reed College and as attorney general of Oregon.