Dear College and University Presidents:
We
write in response to the recent protests that have spread across our
nation’s university and college campuses, and the disturbing arrests
that have followed. We understand that as leaders of your campus
communities, it can be extraordinarily difficult to navigate the
pressures you face from politicians, donors, and faculty and students
alike. You also have legal obligations to combat discrimination and a
responsibility to maintain order. But as you fashion responses to the
activism of your students (and faculty and staff), it is essential that
you not sacrifice principles of academic freedom and free speech that
are core to the educational mission of your respected institution.
The ACLU helped
establish the right to protest as a central pillar of the First
Amendment. We have defended those principles for more than a century.
The First Amendment
compels public universities and colleges to respect free speech rights.
And while the Constitution does not apply directly to private
institutions, academic freedom and free inquiry require that similar
principles guide private universities. We approach this moment with
appreciation for the challenges you confront. In the spirit of offering
constructive solutions for a way forward, we offer five basic guardrails
to ensure freedom of speech and academic freedom while protecting
against discriminatory harassment and disruptive conduct.
Schools must not single out particular viewpoints for censorship, discipline, or disproportionate punishment
First,
university administrators must not single out particular viewpoints —
however offensive they may be to some members of the community — for
censorship, discipline, or disproportionate punishment. Viewpoint
neutrality is essential. Harassment directed at individuals because of
their race, ethnicity, or religion is not, of course, permissible. But
general calls for a Palestinian state “from the river to the sea,” or
defenses of Israel’s assault on Gaza, even if many listeners find these
messages deeply offensive, cannot be prohibited or punished by a
university that respects free speech principles.
These
protections extend to both students and faculty, and to speech that
supports either side of the conflict. Outside the classroom, including
on social media, students and professors must be free to express even
the most controversial political opinions without fear of discipline or
censure. Inside the classroom, speech can be and always has been subject
to more restrictive rules to ensure civil dialogue and a robust
learning environment. But such rules have no place in a public forum
like a campus green. Preserving physical safety on campuses is
paramount; but “safety” from ideas or views that one finds offensive is
anathema to the very enterprise of the university.
Schools must protect students from discriminatory harassment and violence
Second,
both public and private universities are bound by civil rights laws
that guarantee all students equal access to education, including Title
VI of the Civil Rights Act. This means that schools can, and indeed
must, protect students from discriminatory harassment on the basis of
race or national origin, which has been interpreted
to include discrimination on the basis of “shared ancestry or ethnic
characteristics,” or “citizenship or residency in a country with a
dominant religion or distinct religious identity.”
So, while
offensive and even racist speech is constitutionally protected, shouting
an epithet at a particular student or pinning an offensive sign to
their dorm room door can constitute impermissible harassment, not free
speech. Antisemitic or anti-Palestinian speech targeted at individuals
because of their ethnicity or national origin constitutes invidious
discrimination, and cannot be tolerated. Physically intimidating
students by blocking their movements or pursuing them aggressively is
unprotected conduct, not protected speech. It should go without saying that violence is never an acceptable protest tactic.
Speech that is not
targeted at an individual or individuals because of their ethnicity or
national origin but merely expresses impassioned views about Israel or
Palestine is not discrimination and should be protected. The only
exception for such untargeted speech is where it is so severe or
pervasive that it denies students equal access to an education — an
extremely demanding standard that has almost never been met by pure
speech. One can criticize Israel’s actions, even in vituperative terms,
without being antisemitic. And by the same token, one can support
Israel’s actions in Gaza and condemn Hamas without being anti-Muslim.
Administrators must resist the tendency to equate criticism with
discrimination. Speech condoning violence can be condemned, to be sure.
But it cannot be the basis for punishment, without more.
Schools
can announce and enforce reasonable content-neutral protest policies
but they must leave ample room for students to express themselves
Third,
universities can announce and enforce reasonable time, place, or manner
restrictions on protest activity to ensure that essential college
functions can continue. Such restrictions must be content neutral,
meaning that they do not depend on the substance of what is being
communicated, but rather where, when, or how it is being communicated.
Protests can be limited to certain areas of campus and certain times of
the day, for example. These policies must, however, leave ample room for
students to speak to and to be heard by other members of the community.
And the rules must not only be content neutral on their face; they must
also be applied in a content-neutral manner. If a university has
routinely tolerated violations of its rules, and suddenly enforces them
harshly in a specific context, singling out particular views for
punishment, the fact that the policy is formally neutral on its face
does not make viewpoint-based enforcement permissible.
Schools must recognize that armed police on campus can endanger students and are a measure of last resort
Fourth,
when enforcement of content-neutral rules may be warranted, college
administrators should involve police only as a last resort, after all
other efforts have been exhausted. Inviting armed police into a campus
protest environment, even a volatile one, can create unacceptable risks
for all students and staff. University officials must also be cognizant
of the history of law enforcement using inappropriate and excessive
force on communities of color, including Black, Brown, and immigrant
students. Moreover, arresting peaceful protestors is also likely to
escalate, not calm, the tensions on campus — as events of the past week
have made abundantly clear.
Schools must resist the pressures placed on them by politicians seeking to exploit campus tensions
Finally,
campus leaders must resist the pressures placed on them by politicians
seeking to exploit campus tensions to advance their own notoriety or
partisan agendas. Recent congressional hearings have featured
disgraceful attacks by members of Congress on academic freedom and
freedom of speech. Universities must stand up to such intimidation, and
defend the principles of academic freedom so essential to their
integrity and mission.
The Supreme Court has forcefully rejected
the premise that, “because of the acknowledged need for order, First
Amendment protections should apply with less force on college campuses
than in the community at large.”
“Quite to the contrary,” the
court stated, “the vigilant protection of constitutional freedoms is
nowhere more vital than in the community of American schools.” In
keeping with these values, we urge you to resist the temptation to
silence students or faculty members because powerful voices deem their
views offensive. Instead, we urge you to defend the university’s core
mission of encouraging debate, fostering dissent, and preparing the
future leaders of our pluralistic society to tolerate even profound
differences of opinion.
