Anaya Nolan
Private universities are not directly governed by the Constitution but are instead regulated by state and federal laws. While the First Amendment's protections apply to public campuses, private universities are not bound by it. However, private universities are expected to uphold the commitments they make to students, including promises of free speech. Federal laws also protect against discrimination, such as age or disability discrimination, and prohibit private universities from engaging in discriminatory practices. So, while private universities have some autonomy in creating their rules, they must still comply with state and federal laws and respect the rights of their students.
| Characteristics | Values |
|---|---|
| Private universities bound by the First Amendment | No |
| Private universities bound by state laws | Yes |
| Private universities bound by federal laws | Yes |
| Private universities bound by anti-discrimination laws | Yes |
| Private universities bound by contractual promises to students | Yes |
| Private universities bound by commitments to free expression | No, if other values are prioritised |
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What You'll Learn
Private universities are not bound by the First Amendment
If a private university wishes to place a particular set of moral, philosophical, or religious teachings above a commitment to free expression, it has the right to do so. However, it must state this clearly and publicly, allowing students to give their informed consent by choosing to attend.
While the First Amendment does not prevent a private entity from restricting how its resources are used, there are limits to this. For example, refusing service based on a protected class is illegal. Private universities are also not exempt from regulating speech that is unprotected under the First Amendment, such as harassment and true threats.
Some states have passed laws requiring private schools to provide some of the protections of the First Amendment. For example, California's Leonard Law requires private schools to adhere to the First Amendment.
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Private universities are regulated by state and federal law
Private universities are not directly governed by the Constitution. Instead, they are regulated by state and federal laws. While the First Amendment's protections apply on public campuses, they do not directly bind private universities as they only limit government action.
However, private universities are still subject to certain legal constraints. For instance, federal laws enacted by Congress under its power to regulate interstate commerce have enabled the federal government to oversee much private university activity. These laws often address discrimination not prohibited by the Constitution, such as age or disability discrimination. The Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 are examples of federal statutes that prohibit discrimination by private entities.
Additionally, private universities must abide by statutes regulating public accommodations, employment, and federally funded activities. Title VI of the Civil Rights Act of 1964, for instance, prohibits discrimination on the basis of race by federally funded entities. The Higher Education Act, administered by the Department of Education, also sets conditions for federal financial aid programs.
While private universities have more leeway in imposing their views on students, they are contractually bound to respect the promises they make. If a private university prioritizes commitments other than freedom of expression, it must state this clearly and publicly. Students then provide informed consent by choosing to attend.
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Private universities can prioritise values over free expression
Private universities are not government entities and are therefore not bound by the First Amendment. Instead, they are governed by their own policies and contractual obligations to students and faculty. While many private institutions pledge to uphold free expression in their codes of conduct, handbooks, or mission statements, these commitments are voluntary and may be limited by other institutional values.
Private universities can indeed prioritise values over free expression. For instance, some private universities may prioritise religious or ideological principles that take precedence over unrestricted free speech. Others may implement strict policies aimed at creating a particular campus culture, such as prohibiting hate speech or offensive language. These policies are generally enforceable as long as they are clearly stated and consistently applied.
However, it is essential to recognise that if a private university chooses to emphasise particular moral, philosophical, or religious teachings over a commitment to free expression, it has the right to do so. The freedom to associate voluntarily with individuals who share common goals or beliefs is a vital aspect of a pluralistic and free society. If a private university explicitly and publicly declares that it values commitments other than freedom of expression more highly, that institution has significantly more flexibility in imposing its views on students.
Students who attend such an institution have implicitly given their informed consent to abide by the university's values and principles. Therefore, it is crucial for prospective students to familiarise themselves with the university's code of conduct, student handbook, and other governing documents to understand their rights and obligations. While private universities have the right to prioritise values over free expression, they are also contractually bound to respect the promises they make to students. If a private university promises free speech in its policies, it may be held accountable if it fails to honour that commitment.
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Private universities cannot discriminate
Private universities are not bound by the same rules as public universities, which are state agents and must respect the constitutional rights of their students. However, private universities cannot discriminate. Firstly, private universities are businesses, and businesses cannot discriminate against protected classes, which include race, sex, and national origin. Private universities that receive federal funding are also prohibited from discriminating on these bases by Title VI of the Civil Rights Act.
Despite not being directly bound by the First Amendment, private universities have traditionally held themselves out as bastions of free thought and expression. As such, they should be held to the standard that they themselves establish. If a private university promotes itself as a place where free speech is protected, it should be held to the same standard as a public institution.
Private universities that are religiously controlled can discriminate on the basis of religion in hiring decisions. For example, a Jewish school is not required to consider Catholic or Muslim teachers for employment. However, they must still abide by the Equal Employment Opportunity Act's ban on gender discrimination in hiring, unless they are exempt under Title IX of the Civil Rights Act, which allows single-gender schools.
Private universities that receive federal funding are also subject to legal challenges on statutory grounds. For example, in 2014, an advocacy group filed a suit against Harvard alleging that its admissions program violated Title VI by allowing race discrimination against specific groups. Despite the Supreme Court upholding Harvard's race-conscious admissions plan, President Biden directed the Department of Education to examine best practices for promoting diversity in higher education. The Department's guidance reminds institutions of their legal obligations under Title VI regarding race, colour, and national origin discrimination.
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Private universities are contractually bound to students
Private universities are not directly bound by the First Amendment, which limits only government action. However, they are contractually bound to respect the promises they make to students. For instance, if a private college advertises itself as a place where free speech is esteemed and protected, it should be held to the same standard as a public institution.
Private institutions are legally obligated to provide what they promise. They may not engage in fraud or breach of contract. However, if a private college wishes to place a particular set of moral, philosophical, or religious teachings above a commitment to free expression, it has every right to do so. The freedom to associate voluntarily with others who share common goals or beliefs is an integral part of a pluralistic and free society. If a private university states clearly and publicly that it values other commitments more highly than freedom of expression, that institution has more leeway in imposing its views on students, who have given their informed consent by choosing to attend.
It is important to note that, for a private non-profit university, if its activities become extremely political rather than educational, the IRS might revoke its tax-exempt status. However, this does not seem to be a common occurrence.
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Frequently asked questions
No, private universities are not directly bound by the First Amendment, which only limits government action. However, they are contractually bound to respect the promises they make to students.
No, federal laws supersede state laws. Private universities are regulated by state and federal law.
No, federal laws prohibit discrimination based on race, age, disability, etc. in educational institutions, including private universities.
Private universities are not bound by the Free Speech Clause of the First Amendment. However, if a private university advertises itself as a place that values free speech, it should be held to the same standard as a public institution.
Yes, a private university that clearly states it values other commitments more highly than freedom of expression can impose its views on students who have given their informed consent by choosing to attend.
