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First Amendment for College Administrators

Lesson 1: Public Colleges: Legal Landscape and Landmark Cases

Video 2: Administrators' Roles in Free Inquiry and Debate

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Video Transcript

Before we dive into our exploration of how the First Amendment operates on campus, let’s first address the elephant in the room: Why should you care about free speech?

If you are a college administrator, you have no doubt encountered—whether personally or in the media—tales of students or faculty invoking free speech in ways that could only make your job harder. FIREhas been helping students, faculty, and administrators sort through these kinds of difficult encounters since 1999. We have seen alumni, donors, legislators, and the public admonish colleges for “taking sides” in political disputes whether administrators have taken action or stayed out of it. Our goal for you with this training is that, when your going inevitably gets tough, the principles we teach here will not only help you fulfill your institution’s legal obligation to uphold the First Amendment, but enable you to use free speech to facilitate the fundamental truth-seeking mission of higher education. Working in higher education is hard, and we won’t try to convince you that upholding the principles of free speech will always make your job easier. But protecting free speech will make your college or university better.

In describing the First Amendment’s force in higher education, the Supreme Court recognized our country’s long dedication to the principles of free speech and academic freedom: The government cannot cast a “pall of orthodoxy over the classroom.” That means guaranteeing that students and faculty can freely express competing points of view on campus. But, perhaps counterintuitively, studies have also shown free and open dialogue can help reduce polarization on difficult issues. Ensuring students and faculty can freely express their views on campus supports both of these benefits, ultimately promoting the advancement of knowledge for which institutions of higher education are responsible.

Let’s start with the need to permit diverging viewpoints on campus. ������ýapp�ٷ�’s President Greg Lukianoff has emphasized that “Embracing the truth-seeking function of higher education requires thinking in a way that's very different from the way humans are prone to think.” Freedom of speech ensures both the ability to argue in favor of a viewpoint and the ability to know who else thinks differently. Separate from creating a competitive “marketplace” to determine what ideas are “right,” there is value in knowing what people really think, even when it’s wrong. That can be useful on an individual level—say, deciding who you can reliably turn to for advice—or, on a larger scale, figuring out how common a misconception may be. Encouraging free speech means creating an environment where people don’t need to fear putting their cards on the table.

Whether in the classroom or on the quad, protecting free speech ensures teachers and students know not only that they can expose their own views without fear of punishment, but also who they may need to convince and why. “Even the things that feel most intuitive and obvious still have to be tested and challenged through experimentation, counterfactuals, and devil’s advocacy,” says Lukianoff. “That’s a tall order, but chipping away at falsity and striving toward the truth is the point of higher education.”

But don’t just take it from us: College administrators and faculty alike agree the advancement of knowledge is better served by the freedom to express competing viewpoints than by dogmatic indoctrination. It has been the official position of the American Association of University Professors since 1940, that “Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole,” and furthermore that “The common good depends upon the free search for truth and its free exposition.”

As James Madison University professor Mark Piper put it for the AAUP: “The best students master the material and, more important, develop critical-thinking skills. Educating students to achieve these goals demands a pedagogy that allows students to exchange ideas freely and engage openly with course material. FIREmust be free to question, call for elaboration, share disparate or even unpopular views, express disagreement, and withhold assent. All of this requires freedom of speech.”

And this sentiment is not unique to faculty: American University President Jonathan Alger, concurring with Piper, adds: “We can’t prepare students to be productive citizens in an increasingly diverse society by shielding them from ideas with which they happen to disagree or that make them uncomfortable. Ideas and viewpoints cannot be tested and refined in a vacuum; they must be subjected to challenges and counterarguments in order to assess their merit.”

College and university presidents across the country have committed to upholding the principles of free speech and academic freedom in the interest of bettering their institutions. In 2023, the nonpartisan nonprofit Institute for Citizens and Scholars created a program called College Presidents for Civic Preparedness, asking higher ed leaders to commit to “protecting and defending free inquiry” and ensuring students “practice listening, arguing, and collaborating with people who come from different backgrounds and hold different political views.” So far, over 100 college and university presidents have signed on.

Two of the first presidents to do so — Roslyn Clark Artis of Benedict College, and Jonathan Holloway of Rutgers University — published an op ed explaining why they were standing up for free speech: “One value we want to impart to our students is that learning is not about seeking comfort. It can be painful to hear ideas that you find abhorrent. But intellectual divergence provides fertile ground for new growth. Interacting solely with people who mirror your views leads to a warped sense of reality. Instead, students should challenge themselves to question their assumptions and test their ideas against the vast spectrum of human experience. They should be as willing to revise their own perspectives as they are to try to persuade others. In the marketplace of ideas, you need to have enough confidence in your own argument that you are willing to subject it to higher scrutiny, and enough critical skills to scrutinize someone else’s ideas without resorting to rhetoric over substance.”

These are precisely the arguments FIREhas been making for over 25 years. “Freedom of speech,” as we state in our mission, “is a fundamental American freedom and human right. It is essential for democracy, scientific progress, artistic expression, social justice, peace, and our ability to live as authentic individuals.” And even since expanding our work outside higher ed, our mission still puts “a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses.” Because without the ability to speak freely — to question, to argue, to discover — students and faculty could only submit to the prescribed orthodoxy of the day. Stopping students and faculty from openly expressing themselves would mean the end of the search for truth.

Not only that, but the ability to engage in open dialogue and explore challenging issues actually helps reduce polarization between students on those issues. In 2022, the Constructive Dialogue Institute — “a non-profit organization dedicated to equipping learners with the mindset and skill set to engage in dialogue across differences” — ran a randomized control trial testing the effects of a learning program intended to “equip students with practical skills for navigating difficult conversations.” The program, called Perspectives, taught the students intellectual humility, the benefits of engaging in diverse perspectives, and how to manage their emotions during difficult conversations. FIREwho participated in the program were 28% more likely to show a decrease in polarization afterward, than students in a control group. The program also made students less likely to engage in hostility or attacks on others who disagreed with them, and more likely to engage in uncomfortable conversations. The takeaway? “At a time when 70% of Americans believe the country ‘has become so polarized that it can no longer solve the major issues facing the country,’ [...] the results of our study demonstrate that deep feelings of animosity and division are not inevitable, and such hostility can be reversed.” Schools, therefore, should not be shutting down controversial speech, but encouraging “the ability to communicate and collaborate across divides.”

It may not always be easy, but protecting and promoting free speech on campus will provide your students and faculty with the opportunity to think critically, creatively, and openly, by expressing themselves without fear of punishment or censorship. The First Amendment is the best guide we have on how to protect speech – and in the following lessons, you’ll learn what it actually requires schools to do to uphold students’ expressive rights.

Suggested Resources

• Keyishian v. Board of Regents of the University of the State of New York (1967)

• Greg Lukianoff, ""

• Greg Lukianoff, "Coronavirus and the failure of the ‘Marketplace of Ideas’"

• Jane Coaston, ""

• Jonathan Alger & Mark Piper, "; "

• Roslyn Clark Artis & Jonathan Holloway, ""

• Constructive Dialogue Institute, ""