The intricate connection between free speech, harassment, and discrimination in educational institutions, especially universities, is increasingly requiring nuanced, fact-dependent assessments. This comes in the wake of backlash following the congressional hearings on antisemitism last December, when presidents of institutions including Harvard University, the Massachusetts Institute of Technology, and the University of Pennsylvania faced calls for resignation due to their seemingly evasive responses to ostensibly direct questions
Public colleges and universities, dissociating their dual and overlapping legal responsibilities, must acknowledge that they have an obligation to respect the First Amendment rights of their employees and students. In parallel, they are bound by anti-discrimination laws that necessitate addressing any instances of harassment or discrimination. Notably, freedom of speech does not exempt educational institutions from responding to reports of harassment or discrimination, particularly if the speech creates an unfriendly environment under the corresponding anti-discrimination law. This necessitates the establishment of a balance between these legal obligations under public schools and courts.
For private educators, however, the First Amendment restrictions do not universally apply. Yet, in states like California, constitutional free speech protections are extended to students at private secondary and post-secondary schools through the Leonard Law.
While discussions around the rights of faculty members to express their views on public matters continue, it’s important to remember that those speech rights are limited by the administrative interests of the public agency. Of note, some appellate circuits have upheld that faculty members do have free speech rights regarding their ‘scholarship or teaching’ that they can invoke against their employer.
In a noteworthy clarification, the Department of Education’s recent “Dear Colleague” letter explained that public speech can qualify as harassment under federal anti-discrimination laws if, in the totality of circumstances, the speech is both subjectively and objectively offensive and it severely limits or denies a person’s accessibility to the recipient’s education program or benefits.
Another critical concern is that inconsistent enforcement of harassment and discrimination policies by public schools is likely to result in legal challenges. If differing viewpoints are captured under these inconsistent policies and are associated with a protected status, the possibility of a discrimination claim increases.
With an effort to navigate these layered obligations, the American Bar Association has recently favored free expression and academic freedom and voted to adopt a standard for accreditation of law schools that requires the adoption of written policies protecting academic freedom and encouraging free expression of ideas.
In conclusion, while the intersection of free speech and anti-discrimination laws may raise more questions than answers for universities, it is essential that these institutions strive to identify, restrict, and uniformly punish instances of harassment with policies that not just sound fair, but are rooted in the law. [Read More]