Not at Liberty to Discuss

Last week, the Foundation for Individual Rights in Education (FIRE) published its second annual list of the "Seven Best Colleges for Freedom of Speech" on The Huffington Post. As FIRE's president and a HuffPo contributor for the past five years, I knew what was coming next -- and sure enough, the predictable culture war arguments were quickly trotted out by commenters.

I wasn't surprised. After all, the college campus should serve as a kind of national free speech laboratory, where all ideas are freely debated. So naming some schools better or worse at facilitating this kind of dialogue always strikes a chord with readers. Some criticize the schools we've named; some criticize the schools we've omitted.

One college that commenters never fail to mention -- particularly in response to our accompanying "Worst Colleges for Free Speech" list -- is Jerry Falwell's Christian conservative Liberty University, in Virginia.

We do not include Liberty University on the "worst" list, and some commenters see this as a "gotcha" moment. They think this omission reveals FIRE -- a consistentlynonpartisan defender of free speech on campus -- as a right wing group, easily dismissed.

I confess to being tired of this accusation, and not just because FIRE is a secular organization. (Many on our staff are either not Christian or non-religious, like me.) My frustration with the Liberty example stems from its basic misunderstanding of how American plurality works in practice, and it's worth explaining why this is important.

First, a little bit of legal background. Public colleges are bound by the First Amendment and must provide freedom of speech and academic freedom to students and faculty alike. Private colleges are not bound by the First Amendment. Indeed, the First Amendment's guarantee of freedom of association means that citizens have the freedom to form and join organizations under a common set of principles. Private organizations are of course not required to make free speech their top priority; instead, they can choose to organize around the values of their choice.

Most private colleges -- like Yale and Harvard -- promise free speech and other basic rights in glowing language. Other colleges, like Liberty or Brigham Young University, place their religious identity above all else, making clear to incoming students that free speech takes a backseat to faith on campus.

But while private universities are free to organize around a select set of values, such as Liberty's understanding of Christianity, they are most certainly bound by the promises they make in their materials to faculty and students. This "contract theory" of the obligations of private colleges isn't whimsy; it's binding legal precedent in most states, where courts have held that colleges may be required to honor the contractual promises they make.

This is as it should be. One could hardly maintain a functioning society if people could enter into contracts without any legal obligation to fulfill them. And make no mistake about it; universities like Harvard, Yale, and so forth are not issuing extensive promises of free speech and academic freedom out of the goodness of their hearts alone. They know full well that many gifted students, high-caliber professors, and wealthy donors would be reluctant to join or contribute to schools that do not guarantee them the same rights that students and faculty receive at public colleges.

In other words, Yale would be well within its rights to suddenly declare to the world, "We now officially place the feelings of our most vulnerable students and the judgments of our multitude of administrators above the value of freedom of speech." I can virtually guarantee that Yale would never make that decision, however, because it would risk losing its best and brightest students, its most innovative professors, and billions of dollars in donations.

A minority of private colleges, however, do place other interests, like religious identity, above the freedoms that attract such students, professors, and donors. This is exactly how it should be in our diverse and tolerant society. Allowing private colleges to exercise their freedom of association while holding them to their promises maximizes the number of universities that can be expected to provide free speech and academic freedom while defending the constitutional rights of groups that want to be defined by different values.

The problem arises, however, when private universities try to have it both ways. Take, for example, colleges like Georgetown University, which is Catholic but also provides students and faculty strong guarantees of freedom of expression. FIRE has had to call Georgetown to task several times when it has failed to live up to those promises, including its refusal to grant official status to a campus pro-choice group.

On the other side are deeply religious schools, including Yeshiva University, Brigham Young University, and, of course, Liberty. Brigham Young makes no bones about the paramount nature of its Mormon identity. Unlike the pro-choice group at Georgetown, which believed Georgetown's promises to be true, incoming BYU students are aware that they will be bound by the policies of a college committed to Mormon ideals -- and if any aren't, I have to wonder if they are fully qualified to attend college in the first place.

Similarly, Liberty University makes it extraordinarily clear to its students that they are giving up all manner of freedoms that they would enjoy at a public college. All applicants to Liberty must sign a contract stating that they have read and agree to abide by "The Liberty Way," which stresses that Liberty students must "live a chaste, honorable and virtuous life" and "may not engage in any activity on or off campus that would compromise the testimony or reputation of the University or cause disruption to Liberty's Christian learning environment." Incoming Liberty students are knowingly contracting to give up certain rights -- this is what the law refers to as "informed consent."

The kneejerk Huffington Post commenters who cite Liberty as an example of FIRE's allegedly preferential treatment of Christian conservatives either misunderstand the guarantees of the First Amendment or are more interested in condemning conservative Christian colleges than the values that protect and enable our pluralistic society.

As an atheist, I would not attend Liberty University. And as an advocate of freedom of speech, I would not attend a college that does not uphold, in word and in deed, the protections of the First Amendment. But as someone who loves the diversity of our country, I fully believe in and support the right of such colleges to exist.

Those who don't agree with Liberty University's values may simply choose not to attend or teach there. But free speech advocates like FIRE should not attack Liberty for utilizing its own First Amendment freedom of association rights and being clear about its promises and values to students and faculty.

That's our pluralistic democracy at work.