73 Am. U. L. Rev. 807 (2024).
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Abstract
University campuses are being rent apart in disputes pitting free expression against equality [read: diversity, equity, and inclusion]. Yet scholarly discussions and university declarations widely agree: While universities should encourage an inclusive educational environment, free-speech principles prohibit universities from restricting or punishing hate speech, group libel, and other forms of offensive expression. This Article argues that this prioritizing of free speech over equality on campus is mistaken. Equality should often be favored over free expression in campus settings. Although Supreme Court precedents are ambiguous, one can reasonably argue that the doctrine allows universities to restrict and punish offensive expression, including hate speech and group libel, to pursue educational missions. Crucially, expression targeting a historically marginalized group and its members undermines their educational opportunities and environment. The history of free expression supports this thesis, as it urges caution when wielding free-speech principles to the detriment of marginalized groups. Moreover, contrary to the usual scholarly and university assertions, the university does not constitute a pristine marketplace of ideas where the search for truth advances free of domination and coercion. When universities favor free expression over equality, they typically reinforce the status quo of structural hierarchies rather than speak to power. Finally, because universities play a central role in the nurturing of democracy, one can bolster this argument for equality on campus by conceptualizing the university’s mission as cultivating full and equal citizenship for all, including historically marginalized groups.
* Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. J.S.M., Stanford University, 1986; J.D., University of Oregon, Order of the Coif, 1982; B.A., Hamilton College, 1977.