Point / Counterpoint

Is it time to revisit the free speech model in higher education?

The free speech model on college and university campuses came of age in the 1960s in response to student and faculty activism against the Vietnam War. This model, which draws heavily on First Amendment jurisprudence, maintains that institutions may not restrict the political speech of their students, faculty, or staff except for “content neutral” reasons, such as designating specific areas of campus for protests or limiting noise levels during class meetings or exams. It also stipulates that, beyond such logistical concerns, institutions may not restrict or restrain speech unless such speech poses an imminent risk of bodily harm. This includes speech that discriminates on the basis of race, national origin, or religion.

In the past year or so, the increase in antisemitic and other forms of discriminatory expression on campuses has revealed the limits of the current free speech model. Administrators are struggling with the challenge of addressing student demonstrations that include chants such as “Zionists die” or “Jews go back to Poland” while also upholding their institution’s support for free speech. Many colleges and universities continue to permit demonstrations, regardless of content, unless demonstrations exceed noise level rules, physically block access to university facilities, or specifically and persistently threaten members of the university community.

Many college and university administrators are starting to understand the limits of the prevailing free speech paradigm. In particular, the model is at odds with key mandates of Title VI of the 1964 Civil Rights Act. Title VI forbids colleges and universities that receive federal funding from denying educational benefits to or discriminating against any person on grounds of “race, color, or national origin.” Courts have understood this as requiring that colleges and universities ensure students do not face a “hostile environment” on grounds of race or national origin. The challenge is that compliance with Title VI arguably cannot be achieved while also adhering to content neutrality. How can institutions eliminate a hostile environment without restricting the content of discriminatory speech that contributes to that environment? As a result of this conundrum, campus leaders often remain silent in the face of escalating polarization and tensions on their campuses, and the hostile environment continues unabated.

In the worst-case scenarios, violence and arrests can result. In spring 2024, at the University of California, Los Angeles (UCLA), clashes broke out between pro-Palestinian protesters and pro-Israel counterprotesters. (Protesters on both sides included some individuals from outside UCLA—an earlier statement from UCLA said the university had decided to allow two outside groups on campus to express their views.) The situation spiraled out of control for more than three hours before police finally intervened. More than a dozen people were injured, some seriously, and police arrested 210 individuals. The philosophy that speech that denigrates members of the campus community on grounds of race or national origin is tolerable, right up until violence is about to erupt, can thus dangerously delay intervention. This approach also privileges student expression over most other values, such as ensuring all students enjoy a safe and stable learning environment. 

Since the 1960s, most colleges and universities have held that permitting discrimination on campus impairs learning and weakens institutions. The 1954 Supreme Court decision in Brown v. Board of Education, which racially integrated secondary school education, mainstreamed this view. In rejecting Plessy v. Ferguson’s “separate but equal” principle, Chief Justice Earl Warren wrote, “To separate [students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Since then, many secondary education leaders have held that schools cannot ignore explicit or implicit expressions of bias and that addressing such bias is a critical part of the instructional mission.

The same points apply to higher education. When institutions permit discriminatory speech under the rubric of freedom of expression, students who are the targets of such speech may experience significant negative effects, including anxiety, depression, feelings of isolation, and lowered self-esteem. These in turn can lead to reduced class attendance, poor work habits, and decreased participation in classroom discussions, negatively affecting academic performance and learning outcomes.

Additionally, students who perpetrate discriminatory speech may also suffer when institutions do not check their behavior. They may hurt their future job opportunities or create permanent reputational harm. By permitting them to denigrate others, institutions are also missing an important opportunity to shape students’ character.

Too often, the current free speech model ignores the overall student experience and the potential effect of discriminatory speech on the educational mission. While open expression is a critical part of the educational experience, unfettered speech can damage, rather than enrich, the ability of colleges and universities to fulfill their responsibility to educate and support students.

So, what should institutions do in the face of extreme polarization and conflicts within their communities, especially when these target specific racial, religious, or ethnic groups? One thing educators and administrators should not do is silently watch as students tear each other apart over world events. Instead, they should seek to educate students about such events and thereby equip them with the tools to make informed, mature judgments about complex political events and issues. Faculty and administrators should require respectful civil dialogue about differences and be prepared to enforce their expectations.

Educators (at least in their role as faculty members) also should not join conflicts between opposing groups. When they do, given their influence on students’ opinions, they risk exacerbating polarization and incivility on campus. Instead, educators should use students’ passionate interest in world events as an important opportunity to promote learning, cultivate character, and foster a healthy respect for a multiplicity of views. As a result of the current free speech model, institutions have often missed valuable opportunities to help students cultivate compassion for their peers, learn to respect those with whom they have profound disagreements, and develop critical thinking skills that privilege independent assessment over adherence to norms and popular trends.

Institutions should replace today’s free speech paradigm with an educational model that sparks curiosity, promotes ethical conduct, provides extensive knowledge of history and different cultures, and complicates rather than simplifies hard questions. This approach would strengthen the learning environment and produce a more involved and sympathetic generation of leaders who will be prepared to lead US democracy with integrity, tolerance, and wisdom.

—Claire Finkelstein, Algernon Biddle Professor of Law and professor of philosophy at the University of Pennsylvania

In the mid-1990s, as Trinity Washington University’s student body was changing from predominantly White to predominantly Black, copies of an anonymous hate-filled letter were posted around campus. The writer accused Trinity administrators of destroying the traditions of this venerable Catholic women’s college by, among other things, enrolling a majority of Black students. The letter included slanderous statements about specific individuals, angering many on campus. As president of the university, I convened a forum to give students and faculty a chance to share their feelings. The ground rules were simple: listen to everyone, be respectful, and move forward with productive ideas for solutions. I also said that we would not read the letter out loud to avoid further spreading its slanderous statements. Dozens of students lined up at the open mic, some tearful, some angry, all welcoming the opportunity to speak.

Then, just as the meeting was drawing to a close, a student I’ll call Sarah came to the microphone and began to read the letter. The room buzzed in response. I felt sickened as I looked around the room packed with more than two hundred students and faculty. All eyes were on me and Sarah. I had to quickly decide to either stop her—an act of censorship that would provoke more anger—or let her continue, which would hurt different people and likely destroy the fragile peace the meeting had just achieved.

I stepped close to Sarah and quietly asked, “Why are you doing this?”

“Everyone needs to hear the truth!” Sarah replied.

“You are right,” I said, “this whole meeting is about confronting the truth of the racism. But reading the letter out loud now will not help us to get to solutions. It will set us back in harmful ways.”

Our eyes locked as the impasse played out for all to see.

Then she shrugged, stepped back from the microphone, and sat down. The meeting ended. Afterward, I thanked Sarah. She said she disagreed with me but did not want to fight publicly.

I believe in freedom of speech, and I believe campus leaders should encourage students to express themselves. Sarah’s choice to start to read this letter, however, pushed me to the outer limits of my affirmation of students’ freedom of speech. But her decision to step back from the confrontation demonstrated that students can respect the guardrails of speech.

Sarah was focused on lifting up the truth of institutional racism. I could not deny that truth and suppress her speech, but I also had to find a way to protect the community. The need to balance freedom of expression with campus safety is the central challenge that college and university presidents face in considering the scope and limits of speech on campus.

From efforts to integrate lunch counters at Woolworths to the Free Speech Movement protests in response to the Vietnam War at the University of California, Berkeley, in the 1960s to Black Lives Matter demonstrations in 2020, student free speech has long been at the forefront of social change. Teaching students how to speak with purpose is an essential lesson of a liberal education.

As political discourse has become increasingly polarized, institutions have faced contradictory demands from politicians, pundits, and donors: to permit unfettered free speech for some groups while, at the same time, cracking down on certain protests, such as recent ones supporting Palestinian rights. Many of the same critics who claim that colleges and universities repress the speech of conservative students also demand that administrators silence pro-Palestinian protesters.

The political targeting of certain colleges and universities and specific types of student protests is an abuse of governmental authority and presents a clear danger to freedom of speech. College and university presidents must advocate for the rights of their students and the autonomy of their institutions from political interference.

In response to political pressure, institutions have created new protest policies, some of which seem draconian in the ways they limit and punish student speech. For example, Cornell University banned four pro-Palestinian student activists from campus for three years for participating in the disruption and shutdown of a university-hosted career fair that included weapons manufacturers.

Instead of focusing on prohibition and punishment, speech policies should align with the ideals of liberal learning. They should give students a wide scope to explore, challenge, and express themselves across a range of social and political issues. Reasonable guardrails to protect against violence or serious disruption of academic process should not be an excuse to repress or punish expression more broadly.

The choice to support broad student expression may sometimes disturb our comfort zones. Students will make mistakes, speak with reckless disregard for social norms, and test the limits of even the most liberal president’s idea of free speech. Rather than recoiling in fear of political reprisal, college and university presidents should welcome our own discomfort as evidence that our students are actually learning.

Sometimes, outside groups that are eager to have students champion their causes act to provoke student expression. Such a case arose at Trinity when I convened an informational meeting with some undocumented students and their scholarship benefactor. The benefactor happened to work for Amazon—the company had recently announced plans for a second headquarters in northern Virginia, leading to community protests over Amazon’s government contracts and data-mining practices. The benefactor spoke and then opened the meeting for questions. A scholarship student, one of the protesters, rose and read a manifesto condemning Amazon for its alleged collusion with violations of human rights. Other students gasped. I thanked the student and reminded everyone that she had a right to express her opinion. The meeting soon concluded. As we departed the building, the benefactor and I were surrounded by protesters waving signs and shouting anti-Amazon slogans. Later, other scholarship students approached me and expressed horror at what their sister student had done. They asked me to punish her. I said that I would not and that she had a right to speak even though I disagreed with her tactics. They said they were afraid that the benefactor would withdraw his support for their scholarships. I called the benefactor who assured me that he would continue his support, including for the young woman who spoke out.

Freedom of speech is the oxygen of democracy. Colleges and universities have a profound responsibility to teach our students—the future leaders of this nation—how to exercise free speech as advocates and activists for the causes that are important to them. College and university presidents cannot be intimidated by rising authoritarianism. Rather, we must stand courageously against the demands for repression of student speech and instead uphold the essential value of liberal learning, which is education for freedom.

—Patricia McGuire, President of Trinity Washington University

Illustration by Lorenzo Petrantoni