FAN 167.2 (First Amendment Law) Campus Speech Debate Continues: Prof. Post Responds to FIRE’s Creeley

Yesterday, I posted Will Creeley’s Free Speech on Campus: A Response to Robert Post. Mr. Creeley’s piece was in response to a forthcoming article by Professor Post titled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Below, Professor Post replies to Mr. Creeley.

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Robert Post (Yale Daily News)

I very much appreciate Will Creeley’s excellent and eloquent post. In these times of overheated and exaggerated exchange, it is a relief to engage in such a thoughtful dialogue.

Creeley defends FIRE’s record of standing up for freedom of speech within university campuses. I have very little knowledge of the kind of cases that FIRE does or does not take, and I certainly do not mean to imply anything in particular about them. I mean only to attribute to FIRE what FIRE itself proclaims on its own website:

Freedom of speech is a fundamental American freedom and a human right, and there’s no place that this right should be more valued and protected than America’s colleges and universities. A university exists to educate students and advance the frontiers of human knowledge, and does so by acting as a “marketplace of ideas” where ideas compete. The intellectual vitality of a university depends on this competition—something that cannot happen properly when students or faculty members fear punishment for expressing views that might be unpopular with the public at large or disfavored by university administrators.

Nevertheless, freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy.

FIRE then proceeds to discuss the First Amendment in a manner that plainly implies that the “freedom of speech” it wishes to defend is the kind associated with First Amendment rights (even if such rights do not technically apply to private universities). This is also suggested by the reference to the “marketplace of ideas” in the passage I have just quoted.

I have not reviewed FIRE’s litigation, and I hope that Creeley will correct me if I am mistaken, but I suspect that in defending free speech rights on campus, FIRE rather routinely invokes standard First Amendment doctrines, like the prohibition on content and viewpoint discrimination, the prohibition on prohibiting speech because it is outrageous or offensive, and so on. Creeley does not dispute this in his statement, and I shall assume it to be true in this post.

The chapter to which Creeley objects was written to contest this rather mechanical application of standard First Amendment doctrines to the context of universities. The chapter begins by discussing the control of classroom speech to indicate how absurdly inappropriate such doctrines are to core university functions. I do not mean to imply that FIRE argues that content neutrality applies to the classroom. My point is merely that FIRE says that it upholds the application to universities of First Amendment doctrines, and such doctrines cannot sensibly be applied to classrooms.

Creeley affirms that FIRE has “never” argued that individual free speech rights apply to students in the classroom. I believe him. But the question is why FIRE has chosen not to defend such rights. I take it, and once again Creeley should correct me if I am incorrect, that the obvious answer is that endowing students with such rights is inconsistent with the university’s mission of education. But this is as much to say that the university’s educational mission trumps the free speech rights of individual students. And the question is why, if this is true in the context of classrooms, it is not equally true throughout the university.

Universities are institutions created and dedicated to the accomplishment of two missions: the expansion of knowledge and the education of students. With respect to the first mission, I have argued elsewhere, and I will not repeat the arguments here, that the “marketplace of ideas” defended by FIRE has no place. See Robert Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press 2012) and Robert Post, Academic Freedom and Legal Scholarship64 J. Leg. Educ. 540 (2015).

In the context of hiring, promotion, tenuring, grants, and so on, the research of faculty is continuously and properly evaluated for competence. First Amendment doctrines protecting the marketplace of ideas and prohibiting content discrimination are thus inapplicable. Faculty are instead entitled to academic freedom, which, as the 1915 AAUP Declaration of the Principles on Academic Freedom and Tenure declares, concerns “not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching, of the academic profession.” Academic freedom of research is about the autonomy of the scholarly community, what Thomas Haskell calls the community of the competent. This is at root why the kind of individual (First Amendment) rights that FIRE is committed to defending are incompatible with academic freedom. To say that in the context of their scholarly research faculty have academic freedom, rather than individual rights, is thus to say that whatever First Amendment rights they may possess are subordinated to the research mission of the university.

Analogously, the individual free speech rights of students are subordinated to the university’s second mission of education. For a general and theoretical argument about why this must be so, see Robert Post, Between Governance and Management: The History and Theory of the Public Forum, 34 U.C.L.A. L. Rev.1713 (1987). Unless I miss my mark, Creeley effectively concedes that this subordination occurs in the context of the classroom. But he quotes Healy v. James for the proposition that individual student free speech rights might be more compatible with university educational objectives in other areas of the campus. I think there is much to be said for that approach. But it requires a sensitive appraisal of whether and how university regulations serve its educational mission in the context of various spaces and dimensions of campus life. Where attributing individual free speech rights to students is inconsistent with that educational mission, they must yield. Otherwise such rights will undermine the university’s very raison d’etre. That is why the Court has explicitly said that “a university’s mission is education” and that the First Amendment does not deny a university’s “authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities,” which includes “a university’s right to exclude . . . First Amendment activities that . . . substantially interfere with the opportunity of other students to obtain an education.” Widmar v. Vincent, 454 U.S. 263, 268 n.5, 277 (1981) (citing Healy v. James, 408 U.S. 169, 189 (1972)).

We all know that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist. (1969). But we also know that these rights must be “applied in light of the special characteristics of the school environment.” Id. To speak precisely, therefore, First Amendment rights do persist among students and faculty in state universities. But, as is the case in any managerial institution dedicated to organizational objectives, these rights must be subordinated to the attainment of relevant institutional goals. From a practical point of view, therefore, the question is how to define and foster the educational mission of universities. First Amendment rights, with rules about content and discrimination and offensive speech, do not concern this question.

In his statement, Creeley believes that he has solved the problem of educational mission. He tells us that “a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living.” I happen to agree with Creeley’s conclusion. But notice:

  1. This may not be the mission of many private colleges, who may have other educational goals in mind, like the formation of proper character;
  2. This goal may not be constitutionally required of public colleges; and
  3. Even if we assume that Creeley has properly formulated the correct constitutionally mandated goal of higher public education, it does not settle the question of how this goal is to be attained.

Students are by definition immature. On Creeley’s account, they are in school because they need training about how to become public citizens. Providing such training may require the university to regulate their behavior in ways that are incompatible with freedoms that the Constitution properly accords to fully mature citizens. Citizens are sovereigns, and the First Amendment protects their ability to participate in the formation of that public opinion which directs the actions of government. But students are not sovereign with respect to their university. They do not direct university action. To the contrary, they are students to acquire themature independence of mind that marks adulthood. It requires a theory of education to determine how that maturation might be induced. Creely does not provide such a theory. And, needless to say, First Amendment doctrine does not contain within it any such theory of education.

First Amendment rights protect the political equality of citizens. They do not tell us how to become citizens.

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