Varner: Free speech vs. equal opportunity – Bloomington Pantagraph

A universitys fundamental commitment is to the principle that debate or deliberation may not be because the ideas put forth are thought by some or even most members to be offensive, unwise or immoral or wrongheaded The quote is from the University of Chicagos Committee of Freedom of Expression, in response to campus groups demanding an apology from a speaker who used a term deemed offensive in reference to transgender people.

In another well-known episode, University of Oklahoma expelled students caught singing a patently racist fraternity song. In both cases, campus free speech was a central issue.

Notwithstanding commitments to free speech, universities have by both law and policy made strong commitments to equal opportunity. In addition to nondiscrimination in admissions and access to programs and facilities, universities are required to provide an atmosphere free of hostility and intimidation. Protected classes are a lengthy and growing list. Basic civil rights law covers race, religion, national origin, creed and sex. Additional categories include age, disability, Vietnam-era veteran status and members of the LGBT community.

Most universities are strongly committed to free speech, nondiscrimination and inclusivity. Yet the tension when the two clash is and should be a front-burner issue.

I began my 2015 classes by writing the words Je suis on the board. Students in all classes finished the sentence with Charlie. Few approve of the tasteless and offensive satire of Charlie Hebdo, but in the West there was an overwhelming feeling to defend to the death their right to say these things. Then by chance on Martin Luther King Day in America, authorities in Dresden, Germany, forbade a march against what the group called the Islamization of Europe. Freedom of speech is more limited in other countries. Dresden authorities acted within German law and Charlie Hebdo has been summoned into French courts for a number of works illegally offending religion in violation of French law. No country has stronger traditions of free speech than the United States.

All know that free speech law begins with Congress shall make no law abridging the freedom of speech The First Amendment applies to Congress but the 14th Amendment extends this to the state action in addition to the federal government. The words are absolute but exceptions are recognized. Free speech is a freedom from government. It does not apply to actions by private organizations. In the university context, a private institution has substantial room to clamp down on speech deemed by authority to be offensive or out of place. Public institutions are an arm of the state so constitutional rules apply. Within this, though, universities have an educational mission and in that context some limitation for speech that is disruptive behavior.

Private universities, however, are subject to federal civil rights laws so rules and procedures implemented to comply with these laws bring these campuses under the umbrella of the First Amendment. We will examine the tension between free speech and equal opportunity and look at how our traditions of free speech come together with the desire and law to provide equal opportunity.

Coming out of this is a related issue of due process. Both civil rights laws and the recent Campus Sexual Avoidance Elimination Act of Congress seek to protect all from sexual violence. But what are the rights of the accused who face expulsion and a lifetime record as a sexual offender although they have not been convicted of any act in a court of law? Constitutional rights of those accused of crimes do not apply to campus judicial procedures but there must be due process.

Carson Varner is a professor of finance, insurance and law at Illinois State University.