Protecting Protests on Private Campuses

After criticism of her testimony before Congress on antisemitism on college campuses, the President of the University of Pennsylvania, Liz Magill, resigned. And, at Pomona College, authorities arrested a professor who participated in a “die in” protest which “triggered a wave of concern from colleagues, activists, and administration, ultimately leading to a withdrawal of charges.” Near the campus of Yale, during a pro-Palestinian protest, an individual briefly hung a Palestinian flag over a Menorah displayed for Hannukah before fellow protesters shouted at him to take it down. Tensions are high and it is impacting college campuses.

But how are colleges and universities legally obligated to handle such protests? First, the answer depends on whether the institution is private or public.

Public universities may not so easily regulate acts of so called “hate” speech or protests, because public institutions are subject to robust First Amendment free speech protections. As expressed by the Supreme Court of the United States in Matal v. Tam, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

In contrast, private universities are not government entities, and their campuses are not public forums. Because of this, First Amendment protections do not apply to protests at private universities. Legally, this means that private institutions can crack down on protests and speech which they determine to be hateful and offensive in a way that public universities cannot. However, in any crack down, private colleges and universities, like their public counterparts, still need to consider anti-discrimination laws such as Title VI of the Civil Rights Act of 1964, which also implicate speech rights on campus.

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance (interestingly Title VI omits religion as a protected category). This law establishes that conduct (including speech) which amounts to discrimination against individuals in certain protected categories (i.e., race, color, or national origin) is prohibited, even on the campus of a religiously affiliated university, when that institution accepts Federal funds (including Federal student loans).

Specific to the Fourth Circuit, courts have explained that an institution “can be liable under Title VI ‘for its “deliberate indifference to known acts of [racial] harassment in its programs or activities,” if that harassment “is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to”’ a program or activity receiving federal financial assistance.”[1] However, “the harassment must rise above the level of ‘simple acts of teasing and name-calling ... even where these comments target differences in [race, color, or national origin].’”[2]

In February 2024, the Virginia Court of Appeals explained in Ibanez v. Albemarle County that "a claim of a hostile educational environment requires evidence not only that the victim subjectively perceived the environment to be hostile or abusive, but also that the environment was objectively hostile and abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult, ... that is sufficiently severe or pervasive to alter the conditions of ... the victim's educational environment.”

Determining when speech crosses a line into harassment territory is not easy. And it requires an extremely fact-specific analysis. The conduct/speech must be so “severe” and “pervasive” that it prevents the ability of the offended to access a school’s programs or activities. A one-off protest does not necessarily rise to this level.

Regardless of their legal obligations, some private colleges may still choose to implement policies which align speech rights on their campuses with First Amendment protections. And with aims to encourage civil discourse, academic liberty, and the free exchange of ideas, many colleges make this choice. First amendment-based policies at private universities mean that students and other members of the university community are bound to find some speech/protests distasteful and even offensive. But it is not necessarily fair to condemn a college for its protests, as allowing offensive speech on campus is not the same as endorsing it.

[2] See id.

If you have questions about this post or other issues impacting public and private higher education institutions, contact Lindsay Bunting Eubanks or a member of Sands Anderson's Higher Education Team who can help.