FIRE Legal Scholarship: Kelly Sarabyn’s ‘Free Speech at Private Universities’ Published in ‘Journal of Law & Education’
June 1, 2010
FIRE is pleased to announce the publication of "Free Speech at Private Universities," an article by our former Justice Robert H. Jackson Legal Fellow, Kelly Sarabyn, in the April 2010 volume of the Journal of Law & Education. The Journal of Law & Education is published jointly by the University of South Carolina School of Law and the University of Louisville's Louis D. Brandeis School of Law. Kelly's article explores models for speech regulation at private universities. The article's abstract provides an overview of Kelly's argument:
FIRE has long argued that precepts of contract law should govern the relationship between private institutions and their students. With particular attention to promises of free expression, FIRE believes that private colleges and universities are both morally and contractually bound to uphold the commitments they make to students in handbooks and promotional materials. Indeed, our Spotlight rating system evaluates private institutions on this basis, only rating those private schools that explicitly promise their students free expression and related rights.
For the last thirty years, our nation's universities have debated whether to proscribe hate speech on campus. Universities' paramount function is to seek knowledge, and thus they desire free and open inquiry, but universities also wish to ensure that they provide a welcoming environment to historically disadvantaged groups. A detailed study of the policies of the top 150 universities reveals that the majority of universities - rather than resolve these conflicting goals - maintain contradictory policies that both protect and proscribe hate speech. This allows schools to tout different policies to different interest groups, and it leaves students vulnerable to unexpected punishment. I explore possible responses to this pervasive problem. Direct regulation - forcing private universities to allow hate speech - may vindicate the liberal ideal of free speech, but it threatens the liberal ideal of the right to private association. Applying contract law, in contrast, allows private universities to set their own policies, but not to promise community members one type of institution and then deliver another. This enables experimentation across institutions and forces universities to reach a resolution on the question of proscribing hate speech. It would thus move the debate over proscribing hate speech forward.
Given FIRE's commitment to this conception of student rights at private universities, the publication of Kelly's excellent article is very exciting. I strongly encourage any Torch reader interested in free speech at private universities, or simply in legal scholarship more generally, to check out Kelly's piece. Kelly's article may be downloaded from FIRE's site here or from the Social Science Research Network (SSRN) here.
Kelly, a graduate of Yale Law School, was selected as one of FIRE's inaugural Jackson Legal Fellows in 2007. During her time at FIRE, Kelly authored many insightful blog entries on FIRE issues, compiled here, as well as another piece of legal scholarship, "The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students' First Amendment Rights," published in the Texas Journal on Civil Liberties & Civil Rights in April 2009.