74 Am. U. L. Rev. F. 117 (2024).

Abstract

This Response replies to Stephen Feldman’s argument that colleges and universities should prioritize equality considerations over free speech considerations by restricting and punishing offensive expressions targeting historically marginalized groups. Court cases that support the right of high school administrators to restrict speech to advance the educational mission do not establish appropriate precedents for modern secular colleges and universities because the “learning environments” in these settings are so fundamentally different. Emphasizing the role of colleges to cultivate full and equal citizenship is also not a justification for these restrictions because government censorship of disfavored viewpoints is an authoritarian value, not a democratic one. Free speech also does not reinforce the status quo of structural hierarchies since censorship power is always exercised by established authorities who have an interest in suppressing speech that challenges the status quo, which is why free speech principles are the best way to ensure that people can speak truth to power. The actual learning environments of colleges and universities—such as classroom spaces—are best protected through the insistence on compliance with academic freedom norms, which require a scholarly faculty to do their work in a way that is consistent with commitments to professionalism, disciplinary competence, and ethical behavior. Federal and state anti-discrimination laws also impose requirements on college campuses to protect against unequal learning environments, and the extensive and routine steps that campuses engage in to satisfy these obligations are sufficient to address most concerns about equality principles in the setting of higher education.

* Chancellor and Professor of Law and Political Science, University of California, Irvine.