Free speech is a fundamental right in higher education, but its scope and protections vary significantly between public and private colleges and universities. Understanding these differences is essential for students facing censorship or punishment of their speech on campus.
Note that it is crucial to distinguish between a public institution and a private institution when considering free speech protections. This determines the legal standards that apply. A public institution is bound by the First Amendment, meaning students at these schools are protected by constitutional free speech guarantees. In contrast, a private institution is not bound by the First Amendment, though it may have its own policies or contractual commitments regarding free expression. Continue reading and reach out to the free speech lawyers at Allen Harris to learn how free speech rights apply at public and private institutions and what these distinctions mean for students.
Introduction to Free Speech in Higher Education
Free speech is a fundamental right that is a cornerstone of American democracy. The First Amendment protects you—not just your right to speak, but also your right to publish, assemble, and petition the government. Free speech should stand at the very core of your college experience, but unfortunately, the First Amendment is increasingly under attack. You need to understand that your ability to engage in meaningful campus discussions depends on these fundamental protections.
Here’s what you need to know: protections for your speech vary dramatically depending on whether you attend a public or private university. If you’re at a public institution, you’re in a stronger position because government entities must respect your constitutional rights—they have no choice. But the law does not require private universities to honor First Amendment rights. Private schools can set their own rules about free expression. That said, many private colleges and universities have policies that protect free speech, because they understand that critical thinking and open inquiry are essential to a serious educational environment.
You cannot afford to remain uninformed about these distinctions as you navigate campus life. Understanding how free speech applies at your specific school is crucial for protecting yourself and making smart choices about your freedom of expression. Right now, as battles over free speech and academic freedom rage throughout higher education, knowing your rights and responsibilities isn’t just important—it’s essential for your academic survival and success.
Are Free Speech Rights Protected at Public Universities?
Yes.
Free speech is protected at public colleges and universities because they are government entities bound by the First Amendment. Public colleges and universities can only discipline students for speech in accordance with First Amendment protections. Only speech that constitutes true threats, harassment, incitement to violence, or other unlawful conduct is not protected (e.g., speech in furtherance of a conspiracy), but otherwise, students are free to express even controversial or unpopular views.
For example, there is no constitutional exception for so-called “hate speech.” As the Supreme Court held in Snyder v. Phelps (2011), “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and … inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course–to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Any campus policy that regulates student speech based on content is unconstitutional unless narrowly tailored to serve a compelling state interest. For example, in Healy v. James (1972), the Supreme Court ruled that public universities could not deny recognition to a student organization based on its viewpoint, reinforcing the principle that government-affiliated institutions cannot discriminate against lawful expression. However, public institutions may issue content-and-viewpoint-neutral “time, place, and manner” regulations regarding student speech — these would be things like limitations on amplified sound, limitations on demonstrations’ proximity to classes in session, etc. But students at public colleges cannot be disciplined for controversial opinions or for being associated with controversial organizations.
Do Private Universities Have to Protect Free Speech?
It depends.
Free speech in private universities is different than in public universities. Private colleges and universities are not bound by the First Amendment because they are not government entities. Instead, private schools are generally* free to set their own policies concerning students’ free speech rights, which courts in turn interpret as contractual guarantees. (*Note: California has a state law that prohibits private colleges and universities from disciplining students for speech that would be protected by the First Amendment if it occurred off campus.)
Many private colleges and universities promise the right to free speech in their codes of conduct or student handbooks. Because the relationship between students and private universities is contractual, the scope of those promises defines private universities’ obligations to students regarding free speech. For example, some private colleges may prioritize religious or ideological principles that take precedence over unrestricted free speech. Others may implement strict rules aimed at fostering a particular campus culture, such as prohibiting “hate speech” or language deemed to be offensive. On the other hand, many private colleges have adopted broad protections for free speech that are basically coextensive with First Amendment protections, and can be held to those promises in court.
Federal Laws and Protections
Understanding federal law provides another foundation for navigating free speech rights in higher education. Beyond constitutional protections, you’ll encounter federal statutes like Title VI and Title IX that significantly shape campus speech in ways that directly affect you. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in any program receiving federal financial assistance. Title VI applies to almost all educational institutions because almost all of them receive some type of federal funding. Similarly, Title IX addresses sex-based discrimination at any institution of higher education that receives federal funding. Both laws require that colleges and universities address harassment and discrimination — but these requirements must be balanced carefully with students’ free speech rights. Overly broad interpretations can threaten your legitimate expression rights.
In addition, the federal government influences campus policies through executive orders and shifting departmental guidance, such as the significant changes we have seen from the first Trump administration, which overhauled Title IX regulations, to the Biden administration, which introduced its own Title IX regulations, to the second Trump administration which has changed them back again (in addition to changes imposed by the federal courts).
The Department of Education’s Office for Civil Rights has long struggled to balance anti-discrimination laws with First Amendment rights. During the first Trump administration, the Department emphasized protecting campus expression, including through President Trump’s 2019 Executive Order on “Free Inquiry,” which tied federal research funding to schools’ compliance with commitments to free expression. These actions were intended to require private universities receiving federal funds to strengthen their protections for free speech, though the long-term impact remains contested. Harvard, Columbia, and other elite private universities were central in these policy debates. They faced scrutiny over whether their disciplinary policies chilled speech in violation of federal guidance, especially when addressing sensitive issues like anti-Semitism or sexual harassment.
State Laws and Implications
If you’re concerned about your free speech rights on campus, state law can significantly expand your protections beyond what the First Amendment alone provides. While your public university is always bound by constitutional requirements, many states have enacted specific laws designed to safeguard freedom of expression in higher education—often in direct response to censorship concerns and viewpoint discrimination that students like you have faced.
These laws can require your public university to adopt policies that truly affirm the importance of your right to free expression, and in some cases, they extend similar protections to you even if you attend a private university. For example, in California, the Leonard Law uniquely applies First Amendment standards to both public and private universities within the state, ensuring that you enjoy the same robust speech rights regardless of whether you attend a public or private institution. You should also understand that state laws interact with federal requirements, particularly in areas like discrimination and harassment, creating a complex legal environment that your university must navigate carefully. As a result, both you as a student and your administrators need to be fully aware of the specific state laws that may enhance and protect student speech on your particular campus.
What Are the Practical Implications for Students?
The differences between public and private universities have significant implications for student speech rights, participation in campus activities, and student freedoms in general. At both public and private schools, anti-discrimination laws protect any person from harassment or exclusion based on race, color, national origin, sex, or sexual orientation, especially in programs and activities that receive federal funds. Speech that creates a legally hostile environment may be subject to disciplinary action, and university policies are subject to legal review or challenge. Any school, public or private, must follow its own rules governing student conduct and speech but may place reasonable limits on speech, such as time, place, and manner restrictions. Nevertheless, public institutions must meet a high bar to justify any shutdowns or restrictions.
- Public Universities: Students at public universities can challenge restrictions on free speech under the First Amendment. Policies that infringe on free expression, such as vague speech codes or policies that discriminate on the basis of viewpoint, are frequently overturned by courts.
- Private Universities: At private universities, the focus is on contractual rather than constitutional rights. Suing a private university over free speech is difficult because the First Amendment does not apply. Students should familiarize themselves with their university’s code of conduct, student handbook, and other governing documents to understand their rights and obligations.
For both types of institutions, transparency and consistency in applying policies are critical, and disputes often arise when policies are applied unevenly or appear to target specific viewpoints.
The Impact of Speech Restrictions
Restrictions on student speech, especially those that are vague or overly broad, create a chilling effect that discourages you and your fellow students and faculty from expressing your views or engaging in open debate. This self-censorship undermines what you pay tuition for and what you deserve from higher education: academic freedom and the free exchange of ideas.
You’ll find the impact particularly acute if you’re part of a marginalized group whose perspective may already be underrepresented or discouraged in your academic setting. Some universities face significant financial pressures due to threatened cuts to federal funding and grants. If you attend a private university, where First Amendment protections don’t automatically apply to you, you face even greater risk from restrictive policies, making it essential that you understand exactly what your institution promises in terms of your free speech rights.
Conclusion and Recommendations
If you’re navigating the complexities of free speech in higher education, you face a balance of legal obligations, institutional values, and the needs of your diverse academic community. Your college or university should prioritize transparency in speech policies, respect academic freedom, and encourage open dialogue, which are all essential for fostering the vibrant intellectual environment you deserve.
Whether you’re dealing with First Amendment issues or campus speech violations, experienced legal guidance can help you take these proactive steps. We know that colleges and universities must uphold their commitment to free speech, support the pursuit of knowledge, and help prepare students to become informed, engaged citizens. Ultimately, protecting free speech in higher education is not only a legal obligation but a vital part of sustaining a healthy democracy and a thriving academic community that you can rely on.