Universities are facing a tsunami of federal enforcement actions and private litigation stemming from their responses — or their lack of one — to campus protests. Some universities still do not realize how legally exposed they are. Their own speech policies are a big part of the problem.
Private universities are not bound by the First Amendment, but they are bound by Title VI of the Civil Rights Act to enforce their policies in a way that does not discriminate on the basis of race, color, or national origin. But many universities have student-speech policies that are inconsistent, vague, and in some cases seemingly illegal on their face.
Consider, for example, the speech policies of the University of Pennsylvania and Northwestern University — two institutions that were the focus of congressional hearings during the 2023-24 academic year. The University of Pennsylvania’s Code of Student Conduct, for instance, says that students have a right “to freedom of thought and expression,” and that “the content of student speech or expression is not by itself a basis for disciplinary action.” Nonetheless, the handbook goes on to say that “student speech may be subject to discipline when it violates applicable laws or University regulations or policies.” Nowhere is it made clear, however, when student speech violates regulations or policies. Not even an example is provided.
Northwestern’s student handbook is even more problematic. A section entitled “Demonstration Policy” explains that Northwestern “welcomes the expression of ideas, including viewpoints that may be considered unorthodox or unpopular”; the university, after all, “encourages freedom of speech, freedom of inquiry, freedom of dissent, and freedom to demonstrate in a peaceful fashion.” But the handbook also informs students that it “expects” community members to report incidents of biased speech or conduct, which it defines by reference to the “power and privilege” differential of individuals “based on their identity group membership.”
Moreover, although the handbook initially says that Northwestern’s Bias Incident Response Team is “non-punitive,” it goes on to explain that “where an additional response is required by university policy, law, or requested by the reporter” the team will route the report to the appropriate authorities, including “the Office of Civil Rights and Title IX Compliance, the relevant School, College or student affairs dean’s office, or to Human Resources,” thereby seeming to leave punishment for biased speech very much on the table. To the extent that Northwestern is defining, and subsequently punishing, bias based on the racial or ethnic identities of those involved, its policy violates Title VI on its face. Adding to the confusion is President Michael H. Schill’s recent statement to the campus community indicating that new policies will be forthcoming to combat “speech that harms members of our community” especially “forms of identity-based hate.”
University governance is siloed and sometimes frustratingly nonhierarchical.
But the problem is not simply that universities have poorly written policies. It is that such policies are likely to lead to discriminatory enforcement. Universities are too one-sided and too politically homogeneous to be able to enforce ambiguous and vague policies in a neutral way. The bodies conducting disciplinary reviews and issuing judgments tend to be composed of administrators, faculty, and students with ideologically homogeneous viewpoints. University faculty are much more left-leaning than the general public. Surveys have long documented a leftward tilt in the academy, with some finding that fewer than 10 percent of faculty self-identify as conservative. Schools in the Northeast are by far the most liberal, as are liberal-arts colleges generally. In one survey of liberal-arts college faculty, the overall ratio of Democrats to Republicans (by party registration) was roughly 13 to 1, and in several disciplines (anthropology, communications, sociology) the skew was so extreme that most students could complete those majors and not encounter a single registered Republican faculty member.
University administrators are even more ideologically imbalanced than faculty or students. Students are more ideologically diverse than faculty, but students who serve on disciplinary committees are not likely to be a random draw from the student body, and may be unwilling to publicly express dissenting views. The possibility that students will not publicly vote their true feelings was laid bare when the student council at Dartmouth College voted 13 to 2 (with 3 abstentions) in a public vote of no confidence in the Dartmouth president after her forcible removal of a pro-Palestinian encampment in 2024. In a later secret ballot, the council voted 9 to 8 (with 2 abstentions) against the no-confidence motion.
Social-science research suggests that viewpoint diversity is critical to impartial group decision making. The most relevant comparable deliberative body is the jury. Diverse perspectives, including diversity of expertise and of political opinions, have been shown to be relevant in tempering juror biases and ensuring more impartial treatment of the accused. Biases are likely even more pronounced among those serving in adjudicative capacities in higher education than they are among jurors. There is no screening to remove those with fixed prejudices, there are no tailored jury instructions, and the rules of evidence are lax. Review panels at universities are not designed to be made up of representative groups of students, faculty members, and administrators. Indeed, under some university processes, there may be no panel at all, but only a single decision-maker to investigate, determine guilt, and prescribe punishment.
How did universities get to this point? Ambiguous and even internally inconsistent speech policies more likely reflect organizational complexity than nefarious strategy. University governance is siloed and sometimes frustratingly nonhierarchical. It is likely that different constituencies are writing different policies. University discrimination policies are often written with input from university counsel and diversity, equity, and inclusion offices. Conduct codes, procedures, and orientation materials may come from an office of student life or the equivalent. Universities often maintain a separate Title IX office, which writes Title IX policies, while bias-response policies are implemented by a bias-response office or office for civil rights.
These groups, with different agendas and missions, create a hodgepodge of sometimes-irreconcilable policies. Harvard provides a telling example. Its training materials define “cisheterosexism” and “fatphobia” as abuse. But the student handbook links to a faculty resolution from 1990 embracing a First Amendment standard of speech. The handbook does not say the resolution is policy but suggests students should be “aware” of it.
There is a robust body of First Amendment case law to guide university decisions.
How can universities get out of this mess? First, they should audit their policies to ensure consistency and minimize ambiguity. That work may be dull, but it is essential. Universities are exposing themselves to both statutory and contractual liability by having policies that are inconsistent and which allow for broad decision-maker discretion with little transparency or review.
Second, private universities should voluntarily commit to following the First Amendment with regard to student speech. Doing so will not shield universities from their Title VI obligations, but it will make compliance easier for several reasons. Committing to the First Amendment makes consistency across cases more likely. From a legal perspective, the main risk to universities from existing speech policies flows from their inconsistent and ideologically driven application. The First Amendment mitigates this risk in the first instance by simply shrinking the class of cases plausibly subject to university sanction. With less speech subject to punishment, there are fewer opportunities for administrative bias, inconsistency, and error.
Committing to the First Amendment also provides greater clarity regarding the scope of protected speech. While university speech codes are often vague and the outcomes of disciplinary proceedings secret, making it difficult for students and adjudicative bodies to understand the boundaries and parameters of university codes, there is a robust body of First Amendment case law to guide university decisions.
After all, for over 50 years, the First Amendment has clearly governed public universities, and no parade of horribles has hobbled their missions.
