Column on Private vs. State Schools & Free Speech

Private vs. State Schools & Free Speech

Tibor R. Machan

Much
fuss is afoot now about how various schools, especially colleges and
universities, are dealing with the airing of controversial topics.
 Although by my count this isn’t some kind of epidemic, in several
schools the administrators have decided they do not want students to air
ideas (or invite guest speakers to do so) when the ideas are
controversial or a possible source of emotional reaction from some
members of the community.  So, for example, when students at Bucknell
University tried to make a point about mandated affirmative action
policies by differentiating the price of certain items for sale on
campus, they were told by the administration to desist.  Something
similar has happened at UC Irvine, presumably all so as to spare
offending some members of the college community.

This
phenomenon, though not quite new, has been noticed by some news
reporters and commentators, for example Fox Business Network’s John
Stossel, who have found it paradoxical that some speech is being
regulated, even banned, by administrators at institutions that are
supposedly committed to the examination of controversial issues.  Some
administrations have attempted to cope with the problem by creating
“free speech zones” on campus, which effectively moves those who present
controversial ideas–mostly, it seems, ones held by conservative
student groups and their guests (e.g., Anne Coulter)–into special areas
on campus, away from the general population, where they aren’t likely
to offend people with insulting ideas.  

Of
course, such ideas could be about anything but mostly they would have
to do with certain politically correct issues, such as race, ethnicity,
gender, and so forth.  Affirmative action policies, when imposed by law,
are a favorite target of conservative speakers when they apply the
principles of differentiation to some unexpected areas of life, such as
pricing goods and services, even though these same principles are
deployed under the protection of the law in the treatment of students
and faculty at the institution in question.  The idea is, “How come you
find it offensive when, say, blacks and whites are charged different
amounts of money for the same items for sale even though you think they
should be treated differently in the admission or promotion process at
your institution?”

One
matter that’s often overlooked in discussing all this is the difference
between public and private institutions.  Public institutions are
funded by funds confiscated from all taxpayers, while private
institutions are not, which can make a difference in what policies are
legally justified at them.

A
private college, for example, has the right to institute a policy
concerning the airing of controversial ideas that its administrators
believe might work to facilitate the educational mission there, while a
public institution must abide by the principles of the US Constitution.
 This is like the fact that in your own home you can restrict and ban
speech–say by refusing to allow some guest to talk about some
subject–whereas you don’t have the authority to do this when someone
speaks out in public, say at a city park.  Broadly put, the former isn’t
under the jurisdiction of the US Constitution whereas the latter is.

When
a private college administration deems it wise and prudent to keep
discussion of certain topics confined to special places, it may do
offense to the spirit of academic freedom and the tradition of open
discussion associated with educational institutions but there is nothing
in this that violates either the spirit of letter of the American legal
system.  But if a public university does the same, that same legal
system’s principles are being violated.  Yes, even there the
administration has some discretion but normally it may not decide in
ways that do offense to the public philosophy of American law.  


So,
then, if a private university institutes a policy of keeping speakers
on controversial topics away from the general population, at some kind
of “free speech” region, this can be justified in the American legal
tradition but if a public university does the same it cannot.  That fact
may shed some light on how the issue of airing offensive ideas at
colleges and universities is being dealt with across the nation’s higher
educational institutions. 

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