Academic Freedom, the First Amendment, and Harassment: Where Do You Draw the Line?

November 02, 2017

Over the last several months, there has been increased protest activity on college campuses.  As students raise issues of social justice and demonstrate against controversial guests,  faculty members have not shied away from adding their voices. What should an institution do when a faculty member expresses views that seem to antagonize and offend members of a protected class?

For example, a college recently suspended a sociology professor who posted controversial comments on Facebook regarding race and law enforcement following a mass shooting. The comments were widely publicized, resulting in threats of violence toward the professor as well as his institution.  The professor was reinstated after the institution concluded that his remarks were protected by academic freedom.

Colleges and universities must carefully balance respect for academic freedom and free speech when taking a stance against discrimination and harassment. Striking this balance without dampening the exchanges of ideas and discourse that are a hallmark of higher education can be a challenge. However, by understanding key aspects of the law and adopting certain practices, institutions can better navigate this difficult area.

Restrictions Are Permissible

A faculty member’s right to express ideas is not without restrictions. Faculty members and administrators at public institutions are afforded the right to free speech under the First Amendment of the Constitution.  However, courts have narrowed this right by restricting certain types of speech, such as that which incites violence or illegal action or expresses a threat.  Generally, public colleges and universities may impose reasonable, content-neutral restrictions on speech (i.e., limit the circumstances ("time, place, manner") under which the speech may take place, but not the subject of speech).  Although private institutions are not subject to the First Amendment, they often adopt similar principles and enforce them through policies and codes of conduct.

Your institution must also assess whether questionable speech violates Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of color, race, national origin, or status as a language minority) or Title IX (which prohibits institutions receiving federal financial assistance from engaging in discrimination or harassment on the basis of sex).

Helpful Practices

Determining whether speech is protected by academic freedom or prohibited by First Amendment restrictions, Title VI, or Title IX can be a complex process.  Take these steps to prepare your faculty and administrators to identify and assess potentially controversial content:

  • Train faculty and administrators regarding their rights and responsibilities, and advise them that their speech may be subject to restrictions.  If possible, provide examples of cases in your jurisdiction that illustrate prohibited speech or behavior.  The training should reinforce the institution’s values of respect and civility.  Continually communicate these values  and immediately address any violations.
  • Review and enforce your anti-harassment policy to ensure clarity regarding restricted conduct and/or speech and to provide sufficient notice to faculty members of prohibited behavior.  A clearly articulated harassment policy is more likely to be upheld if issues arise.
  • Immediately respond to hate speech or harassment when it occurs.  Develop and consistently enforce a process to address allegations of hate speech or harassment.  Emphasize to your campus community that incivility, discrimination, or harassment will not be condoned.

Following this guidance will demonstrate your institution’s commitment to cultivating an environment that encourages academic freedom and does not tolerate harassment.

Kimberly Cole, United Educators risk research counsel