Issue Briefs

About

In general, private colleges and universities are free to set their own policies around freedom of speech. Under the First Amendment, public institutions of higher education must adhere to constitutional free speech requirements, but private institutions are not generally bound by these same restrictions. Nevertheless, as academic institutions devoted to the free exchange of ideas and broad learning, most private, nonprofit institutions maintain free speech policies that reflect these beliefs. Notably, private, nonprofit institutions can be held accountable legally for violating their own free speech policies.

In contrast to the complex requirements of the Constitution, the Higher Education Act is largely silent with respect to free speech on campus, with one limited exception. The statute contains a non-binding “sense of Congress” that expresses support for the diversity of educational institutions and missions and encourages institutions to facilitate the free and open exchange of ideas, while discouraging activities that penalize students because of their participation in protected speech.

Controversies over freedom of speech on college campuses have long affected the political and public perception of higher education. In recent years, campus free speech has been a topic of major interest in Congress, especially among Republican members. In particular, some of the more conservative Members have alleged that colleges and universities are more interested in advancing a politically correct agenda than in protecting free expression or punishing students who engage in violent protests. Congress has held numerous hearings on this topic, as well as raised the prospect of legislating on the subject.

More recently, policymakers’ interest in free speech in higher education has been complicated by the wave of protests that emerged on campuses in response to the Israel-Hamas war and by efforts to target the teaching of divisive concepts such as critical race theory and LGBTQ acceptance. In this political environment, campus policies and actions regarding speech, academic freedom, and DEI will continue to be the subject of public scrutiny, and it is more important than ever for institutions to carefully consider how they handle free speech on their campuses.

Recent Developments

In 2020, the Trump Administration published regulations that targeted institutional free speech policies. Under the rules, institutions are required to abide by their stated institutional policies regarding freedom of speech and academic freedom as a material condition of receiving a grant from the Department of Education. When the regulations were proposed, NAICU and other higher education associations raised significant concerns about the freedom of speech provisions in the regulations. Specific concerns include the risk of excessive and frivolous litigation, broad liability exposure under the False Claims Act, and the strong likelihood of inconsistency in enforcement.

In contrast, the Biden Administration supported an effort to repeal the Trump-era free inquiry regulations. NAICU and other higher education associations supported this effort, but the Trump-era rules were never repealed and remain in effect.