Private vs. State Schools & Free Speech

Tibor R. Machan

Much fuss is afoot now about how various schools, especially colleges and universities, are dealing with the airing of controversial topics. Although by my count this isn’t some kind of epidemic, in several schools the administrators have decided they do not want students to air ideas (or invite guest speakers to do so) when the ideas are controversial or a possible source of emotional reaction from some members of the community. So, for example, when students at Bucknell University tried to make a point about mandated affirmative action policies by differentiating the price of certain items for sale on campus, they were told by the administration to desist. Something similar has happened at UC Irvine, presumably all so as to spare offending some members of the college community.

This phenomenon, though not quite new, has been noticed by some news reporters and commentators, for example Fox Business Network’s John Stossel, who have found it paradoxical that some speech is being regulated, even banned, by administrators at institutions that are supposedly committed to the examination of controversial issues. Some administrations have attempted to cope with the problem by creating “free speech zones” on campus, which effectively moves those who present controversial ideas--mostly, it seems, ones held by conservative student groups and their guests (e.g., Anne Coulter)--into special areas on campus, away from the general population, where they aren’t likely to offend people with insulting ideas.

Of course, such ideas could be about anything but mostly they would have to do with certain politically correct issues, such as race, ethnicity, gender, and so forth. Affirmative action policies, when imposed by law, are a favorite target of conservative speakers when they apply the principles of differentiation to some unexpected areas of life, such as pricing goods and services, even though these same principles are deployed under the protection of the law in the treatment of students and faculty at the institution in question. The idea is, “How come you find it offensive when, say, blacks and whites are charged different amounts of money for the same items for sale even though you think they should be treated differently in the admission or promotion process at your institution?”

One matter that’s often overlooked in discussing all this is the difference between public and private institutions. Public institutions are funded by funds confiscated from all taxpayers, while private institutions are not, which can make a difference in what policies are legally justified at them.

A private college, for example, has the right to institute a policy concerning the airing of controversial ideas that its administrators believe might work to facilitate the educational mission there, while a public institution must abide by the principles of the US Constitution. This is like the fact that in your own home you can restrict and ban speech--say by refusing to allow some guest to talk about some subject--whereas you don’t have the authority to do this when someone speaks out in public, say at a city park. Broadly put, the former isn’t under the jurisdiction of the US Constitution whereas the latter is.

When a private college administration deems it wise and prudent to keep discussion of certain topics confined to special places, it may do offense to the spirit of academic freedom and the tradition of open discussion associated with educational institutions but there is nothing in this that violates either the spirit of letter of the American legal system. But if a public university does the same, that same legal system’s principles are being violated. Yes, even there the administration has some discretion but normally it may not decide in ways that do offense to the public philosophy of American law.

So, then, if a private university institutes a policy of keeping speakers on controversial topics away from the general population, at some kind of “free speech” region, this can be justified in the American legal tradition but if a public university does the same it cannot. That fact may shed some light on how the issue of airing offensive ideas at colleges and universities is being dealt with across the nation’s higher educational institutions.