Abstract
This Article examines the tension between a prospective college student’s First Amendment freedom of speech and a public university’s unenumerated, inchoate right of institutional academic freedom. The friction between these interests was cast in high relief in 2020 when several schools confronted dual issues: (1) whether to rescind offers of admission to individuals who later were discovered to have engaged in offensive speech, and (2) whether revoking admission offers because of odious, hateful messages would violate the constitutional right of free expression. The Article argues that the right of institutional academic freedom—albeit maddeningly amorphous—encompasses a public institution’s ability to choose the students it wishes to teach. This notion first seeped into the U.S. Supreme Court’s jurisprudence in 1957 with Justice Frankfurter’s concurrence in Sweezy v. New Hampshire. This principle, in turn, should afford a public university greater legal leeway to rescind an admission offer based on an individual’s offensive, yet presumptively protected, speech than it would possess in expelling a fully enrolled student who is actively taking classes. The Article contends that while the First Amendment generally protects an individual’s right to engage in offensive speech, the Amendment does not give one the right to enroll in classes at a public university and it should not be weaponized to interfere with a holistic admissions process. In the process of addressing these issues, the Article discusses unprotected categories of speech, as well as the Supreme Court’s recognition that a university should be a diverse marketplace of ideas.
Introduction
Should public universities—institutions bound by the First Amendment’s guarantee of free speech—be allowed to rescind admission offers without violating that constitutional provision when racist posts by prospective students are later discovered?[1] That question, which the U.S. Supreme Court never has addressed, garnered significant public attention after the killing of George Floyd by a white police officer in May 2020.[2] The New York Times reported that following Floyd’s death, “at least a dozen schools . . . rescinded admissions offers to incoming students over instances of racism that circulated widely online, often after outraged students and university alumni demanded swift action.”[3]
Some of those institutions, such as Marquette University and Xavier University, are private and therefore are not restrained by the First Amendment.[4] As Justice Kavanaugh recently explained: “[T]he Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.”[5]
Some public universities, however, cited the First Amendment in explaining why they opted not to revoke admission offers.[6] Consider the response of Clif Smart, president of Missouri State University. He proclaimed being “horrified” by what he characterized as “racially charged posts on social media made by incoming freshmen” at his institution.[7] Although Smart stated that his initial reaction was to rescind those individuals’ offers of admission, the First Amendment thwarted him.[8] He reasoned that:
As a public university we are legally required to uphold the principles of free speech embodied in the First Amendment to the Constitution. The video—as hurtful, insensitive and offensive as it is—is protected by the First Amendment, as was the language in the social media posts. I will admit that it was tempting to ignore the First Amendment in this case. Doing so would violate our legal obligations but, more importantly, it would effectively prevent the university from accomplishing its mission.[9]
Smart’s response accurately captures the macrolevel principle that what many people might consider to be “hate speech” is generally protected by the First Amendment from government censorship.[10] Indeed, as Justice Alito explained in 2017 when the Supreme Court struck down part of a federal statute giving the U.S. Patent and Trademark Office the power to deny registration for racially disparaging trademarks: “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.’”[11] Hate speech goes without First Amendment shelter only if its usage falls within the narrow confines of unprotected categories of speech such as fighting words, true threats, and incitement to violence.[12]
In brief, Smart’s response taps sub silentio into a latent concern that revoking an offer of admission based on constitutionally protected speech might trigger expensive and protracted First Amendment–based litigation against a university. This raises a key issue: Is there a competing, constitutional interest that public universities might assert as a defense if, in fact, prospective students who had their admission offers revoked were to sue the institutions for violating their First Amendment right of free speech?
This Article argues in Part I that public universities seeking to rescind offers of admission to prospective students who have yet to start classes should invoke the unenumerated First Amendment right of institutional academic freedom to buttress their position.[13] Part I readily acknowledges this right is anything but firm and that its contours remain to be fully fleshed out by the Supreme Court. Yet, institutional academic freedom should, at minimum, encompass the ability of a public university to select the students it wishes to teach, especially when a school embraces a holistic admissions process that considers more than simply grade point averages (GPAs) and scores on standardized tests.
The Article illustrates both sides of the equation, however, revealing a key potential argument on behalf of spurned future students. Specifically, Part II addresses the Supreme Court’s recognition that a university should embrace a diverse marketplace of ideas—a principle providing prospective students with an added arrow in their First Amendment quiver when challenging a public university’s decision to revoke an admission offer based on offensive speech.[14]
Finally, the Conclusion argues that permitting prospective students to use the First Amendment to block universities from rescinding admission offers amounts to weaponizing that constitutional provision by deploying it to interfere with and deregulate the admissions process.[15] This is especially true when the speech of students that lands them in trouble is of low value and fails to serve either the kinds of interests the First Amendment was intended to safeguard or, as Justice Breyer recently and more eloquently put it, the “well-established principles at the core of the First Amendment.”[16]
I. Institutional Academic Freedom: A Competing Interest Against an Applicant’s Freedom of Expression
In Sweezy v. New Hampshire,[17] a majority of the Supreme Court “embraced academic freedom” for the first time in 1957.[18] The Court held that New Hampshire’s attorney general violated the Fourteenth Amendment due process rights of Paul Sweezy, who described himself as a “classical Marxist,”[19] when the attorney general attempted to compel Sweezy to answer certain questions and disclose facts about his political beliefs and teachings.[20]
In the process of doing so, Chief Justice Warren observed for a four-justice plurality that:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.[21]
Paul Horwitz contends that the “true lineage” of academic freedom “as a potential First Amendment value” is rooted in Sweezy.[22] He quotes the above-noted passage by the plurality as pivotal in this development.[23] Other language in that case, however, would also prove exceedingly important over time.
In particular, Justice Frankfurter penned a concurrence joined by Justice Harlan.[24] In it, Frankfurter quoted a passage from a conference statement by senior scholars in South Africa known as The Open Universities in South Africa.[25] The statement provided, in key part, that:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.[26]
The inclusion of this language in Sweezy, as Judith Areen notes, “broke important, new conceptual ground.”[27] That is because it expanded “constitutional academic freedom to include academic governance matters as well as research and teaching.”[28] In other words, as James Leonard writes, it tapped into academic freedom as “an institutional right,”[29] rather than simply an individual professorial right.[30] Government meddling with any one of the four essential freedoms noted by Frankfurter thereby would “give[] rise to a claim that a university’s academic freedom is being infringed.”[31] Ultimately, as Richard Hiers encapsulates it, Frankfurter’s concurrence became “the basis for the latter-day notion that colleges and universities are entitled to academic freedom or autonomy under the First Amendment.”[32]
The emphasized portion of Frankfurter’s quotation above regarding who is admitted to study is critical for universities in making their case today that they possess the authority and autonomy to deny admission—even after an initial decision to admit and even in the face of possible First Amendment challenges—to prospective students in light of their expressive activities. In brief, Frankfurter’s concurrence recognizes the right of a university to determine on academic grounds who it admits to study.[33] In a holistic admissions process that evaluates more than simply GPAs and standardized test scores, consideration of the substantive content of a student’s writings—even public posts on Facebook and tweets on Twitter—arguably constitutes an academic ground for revoking an admission offer.[34] Indeed, a 2017 study conducted by Inside Higher Ed revealed that 27 percent of admission directors at public universities surveyed agreed that it was appropriate to consider social media posts when making admissions decisions.[35] The figure doubled to 54 percent at private institutions.[36]
Justice Powell, in delivering his opinion in Regents of the University of California v. Bakke[37] announcing the Court’s judgment, cited Frankfurter’s Sweezy concurrence to support the proposition that “[a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.”[38] Powell’s statement in Bakke, as Mark Yudof wrote, “embraces institutional academic freedom.”[39] Unfortunately—at least for universities today seeking to revoke admission offers—Powell’s language appeared in part of the badly fractured Bakke ruling that no other justice joined.
In 2003, however, Justice O’Connor in Grutter v. Bollinger[40] cited approvingly the emphasized portion of Powell’s quotation above when she explained for a majority of the Court that its cases recognize “a constitutional dimension, grounded in the First Amendment, of educational autonomy.”[41] While thus reinforcing the notion that institutional academic freedom includes autonomy in selecting the student body, Grutter dealt with the constitutionality of using race as a factor in a law school’s admission process, not with whether students could be denied admission (or have an offer rescinded) based upon their speech.[42]
Nonetheless, O’Connor’s Grutter language regarding “educational autonomy” adds teeth to dual assertions by the Court in its 1985 ruling in Regents of the University of Michigan v. Ewing.[43] Specifically, the Court in Ewing opined that: (1) academic freedom thrives partly on the principle of “autonomous decisionmaking by the academy itself,”[44] and (2) “[d]iscretion to determine, on academic grounds, who may be admitted to study, has been described as one of ‘the four essential freedoms’ of a university.”[45] Lower courts, in turn, have equated Ewing’s focus on an educational institution’s autonomy and discretion with the concept of deference.[46] In a nutshell, and when combined with Frankfurter’s concurrence in Sweezy, institutional academic freedom affords universities a large degree of autonomy, discretion, and deference when they decide who should be admitted to study. This right, in turn, should provide a viable defense to public universities in the event they were to be sued today on First Amendment free-speech grounds for revoking offers of admission because of subsequently discovered racist or otherwise offensive posts.
Problematically for universities seeking to revoke admission offers, the overall constitutional terrain of academic freedom is anything but settled and smooth.[47] Alan Chen explained in 2006 that “[b]ecause the Supreme Court has never fully articulated a constitutional doctrine of academic freedom, the extant law can best be described as a set of context-specific legal standards loosely connected by some common principles” and thus “courts and commentators alike find it difficult to articulate the most basic doctrinal precepts of academic freedom law.”[48] Furthermore, while the Supreme Court clearly has recognized certain facets of a university’s academic freedom and autonomy, it has “never held that universities lie entirely beyond the reach of students’ First Amendment rights.”[49]
There is another potential hurdle in using the right of institutional academic freedom as a defense against First Amendment free speech lawsuits filed by prospective students whose admission offers are revoked. Specifically, the right of institutional academic freedom might be narrowly confined to warding off external government meddling in admission decisions, not lawsuits filed by private individuals. For example, Frederick Schauer contended in 2006 that “an institutional right to academic freedom is best understood as a right of academic institutions against their political and bureaucratic and administrative supervisors, whether those supervisors be elected legislators or appointed administrators.”[50] If institutional academic freedom is construed by courts only as “an enforceable right to be protected from external political or bureaucratic interference with its academic judgments,”[51] as Schauer perceives it, then its power is rendered futile when confronted with individual interference in the form of a lawsuit.
In summary, the overarching concept of academic freedom is troublingly murky.[52] The notion, however, of institutional academic freedom, as articulated in Frankfurter’s concurrence in Sweezy and later reinforced by O’Connor in her opinion for the Court in Grutter, protects a university’s autonomy and discretion when selecting its student body. This right, in turn, fortifies a university’s ability to revoke an admission offer based on a prospective student’s offensive speech, thereby pitting an individual’s First Amendment right of free speech against a public university’s right of institutional academic freedom.
All of this assumes, of course, that admission offers are rescindable in the first place. That, in fact, generally is the case. Education Week reported in June 2019 that “[m]ost colleges have policies that protect their right to withdraw offers of admission if they learn of behavior that calls into question the student’s character or integrity.”[53] Indeed, as Howard Wasserman pointed out more recently, “[o]ffers of admission are conditional, and [a] university still has some leeway to rescind the offer up until the student starts school.”[54] For example, the University of Richmond, a private institution, stressed the following in rescinding an admission offer in June 2020 based on a racist social media post:
Admission to the University of Richmond is offered with the condition that students wishing to join our community maintain the academic and social/behavioral standards on which admissions is based—standards expected of all members of the community. Violation of those standards has resulted in a review and reconsideration of the admission decision.[55]
Perhaps a student who has turned down other admission offers in reliance on one that is later revoked and also who can no longer gain admission elsewhere because of the negative publicity surrounding the revocation might try to turn to a promissory estoppel theory against the revoking institution.[56] Assuming, however, that admission offers are conditional, as Wasserman notes, that theory would likely fail.[57]
With this overview in mind of the right of institutional academic freedom serving as a public university’s defense for revoking admission offers in the face of possible First Amendment–based lawsuits by spurned offerees, the next Part illustrates how the principle that a public university should promote a diverse marketplace of ideas on campus may provide those same jilted prospective students with added ammunition against this academic freedom defense.
II. Universities as Marketplaces of Ideas: How a Venerable Concept May Come Into Play When Offers of Admission Are Revoked
The metaphorical marketplace of ideas, as Rodney Smolla recently observed, “has been invoked constantly by the Supreme Court justices in First Amendment cases”[58] and “exerts a powerful influence on First Amendment law writ large.”[59] It was instantiated in First Amendment jurisprudence more than a century ago when Justice Holmes famously wrote in a dissenting opinion that:
[T]he ultimate good desired is better reached by free trade in ideas . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.[60]
The theory hinges on facilitating an open process whereby conceptions of the truth can both be discovered and constantly challenged.[61] As the author of this Article encapsulated it elsewhere, “the marketplace theory is as much about process (challenging ideas) as it is about product (the truth).”[62] Both the process and the product, in turn, help to facilitate a self-governing democracy.[63]
Significantly for purposes of this Article, the marketplace metaphor has worked its way into the Supreme Court’s jurisprudence affecting academic freedom. In 1967, the Court in Keyishian v. Board of Regents[64] reasoned: “The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”[65] Five years later, the Court pushed the locus of the metaphor outside the confines of the classroom, writing: “The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”[66]
One can envision prospective students whose admission offers are revoked because of offensive posts invoking the marketplace metaphor and using it against public universities. Their hypothetical argument, in a nutshell, might go something like this: “You don’t want a robust marketplace of ideas—something the Supreme Court privileges and prizes—on campus. You only want students who subscribe to politically correct viewpoints and speak in politically correct styles—in other words, you only want speech that does not offend. In fact, you’re engaging in viewpoint-based discrimination against us, thus removing our points of view from the marketplace of ideas on campus and, in turn, violating our First Amendment right of free expression.”
In addition to relying on the Supreme Court’s recognition that universities are marketplaces of ideas as described earlier,[67] the hypothetical argument articulated above hinges on three key propositions. Specifically, the logic chain unspools as follows. First, the Supreme Court prohibits government censorship of speech simply because it offends.[68] Second, the Court has held that “[g]iving offense is a viewpoint.”[69] Third, the Court repeatedly has stressed that viewpoint discrimination against speech is particularly troubling under the First Amendment.[70] In short, forsaken prospective students would likely contend, were they to sue, that the revoking universities violated two core tenets of First Amendment jurisprudence—one prohibiting censorship of speech because it offends and one barring viewpoint discrimination—as well as the larger principle that universities should be diverse marketplaces of ideas.
An argument pushing back against this, however, is that courts should recognize a pivotal distinction between revoking an admission offer to an incoming, nonenrolled prospective student and expelling a student who is currently taking classes based on their speech. Individuals in the former category arguably have fewer First Amendment speech rights against the actions of a public university than do the latter, particularly in light of the conditional nature of offers described above.[71] Currently enrolled students, in contrast, possess the full panoply of First Amendment protections.[72] As Evan Gertsmann recently explained, “[a]n admissions committee can reject a student whose application essay contains racist tropes even if the school couldn’t expel the student for expressing the same tropes once she is attending the school.”[73]
A holistic admissions process often considers the speech of prospective students, particularly in essays and personal statements,[74] and is “centered on judgments about particular students’ likely ability to succeed and thrive at a given institution and, as importantly, a student’s potential to contribute to the teaching and learning experience of their peers and ultimately to affect contributions of the institution to society.”[75] Furthermore, a university’s mission, values, and goals are central to such a holistic process in considering whether an applicant is suitable for study.[76] There seemingly is nothing that would bar a public university’s admission committee from considering the speech of prospective students set forth in venues other than essays and personal statements—speech beyond the confines of that which is directly submitted in an application—in order to help it determine if a student would thrive there, contribute to the experience of others, and be a good fit in light of its mission and vision as an institution. Applicants, however, should be entitled to fair notice of this before they apply, in light of constitutional due process concerns.[77] In fact, in light of the 2020 wave of controversies regarding whether to rescind admission offers addressed in the Introduction of this Article, one might very well expect some public universities to now make explicit in their admission policies that they may:
- Consider an applicant’s speech activities in venues beyond application essays and personals statements and, in particular, may consider any and all social media posts when evaluating an applicant’s suitability for admission; and
- Revoke an offer of admission at any time up until a prospective student starts taking classes, including revoking offers based on consideration of a prospective student’s speech of which it was unaware when the initial offer was
In the absence of definitive guidance from the courts on these issues, it seems universities might want to embrace such a proactive approach. They should clarify the speech-based factors that they will consider in their admission process, the reasons for which admissions offers can be revoked and the timetable or deadline for when offers can be revoked. Such transparency provides fair notice to applicants and admission offerees, thereby possibly reducing the risk of successful First Amendment lawsuits against the institutions.
Conclusion
In 2018, a five-justice bloc of conservatives on the Supreme Court held that a state statute compelling nonunion, public-sector employees to pay agency fees to the union representing them in collective bargaining violated those nonunion members’ First Amendment right of free speech.[78] In doing so, the majority applied heightened First Amendment scrutiny and rejected the use of deferential rational basis review—something called for by the four liberal-leaning dissenting justices—as “foreign to our free-speech jurisprudence.”[79]
Dissenting, Justice Kagan blasted the majority for “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”[80] She added that “[t]he First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”[81]
An analogy is appropriate here: When prospective university students who have engaged in racist speech cite the First Amendment guarantee of free expression as the reason why a university should not revoke an admission offer, those individuals are, in essence, weaponizing that constitutional provision. Specifically, they are using the First Amendment to intervene and meddle with a public university’s autonomy and discretion in its admissions process and, as noted in Part I, its right of institutional academic freedom in selecting its student body.
Kagan’s point that the First Amendment was meant to protect democratic self-governance also should not be overlooked. It comports with Breyer’s view that heightened First Amendment scrutiny should only come into play when a regulation of speech implicates “the values the First Amendment seeks to protect.”[82] Put differently, his approach to scrutiny focuses partly on whether harm is being worked to “the [First] Amendment’s expressive objectives.”[83] Those core objectives and values include, as Kagan noted, facilitating democratic self-governance,[84] as well as truthseeking and truthtesting in the marketplace of ideas, as described in Part II.[85]
Revoking admission offers because of overtly racist speech—using racial slurs, for example, in mocking others,[86] or equating kneeling before a football game during the playing of the national anthem with a police officer kneeling on the neck of George Floyd for nearly nine minutes and killing him[87]—that fails to promote such values therefore should not trigger heightened First Amendment concerns if spurned prospective students were to file suit against the revoking universities. Indeed, such speech is of decidedly low—if any—value. To quote the Supreme Court’s decision in Chaplinksy v. New Hampshire,[88] “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[89] In the case of admission revocation decisions, their value is clearly outweighed by a public university’s right of institutional academic freedom in selecting the students that it wishes to teach.
The bottom line is that while the First Amendment certainly provides prospective students with the right to engage in most forms of speech free from government censorship, it neither guarantees them admission nor means that their speech is later exempt or otherwise immune from possible consideration in a public university’s holistic admissions process.[90] A public university that embraces, as part of its mission, the promotion of inclusion, equity, and diversity should be able to decide for itself that it can revoke admission offers to prospective students if their speech indicates they are unlikely to contribute to or be a good fit within that university’s community of scholars and mission. Most importantly, a public university should be protected by the right of institutional academic freedom in making that determination.
[1]. The First Amendment to the U.S. Constitution provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. Const. amend. I. The Free Speech and Free Press Clauses were incorporated ninety-five years ago through the Fourteenth Amendment’s Due Process Clause as fundamental liberties applicable for governing the actions of state and local government entities and officials. Gitlow v. New York, 268 U.S. 652, 666 (1925) (“[F]reedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”). The U.S. Supreme Court has made it clear, in turn, that the First Amendment guarantee of free speech applies to students enrolled at public universities. Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”).
[2]. See generally What We Know About the Death of George Floyd in Minneapolis, N.Y. Times (Sept. 11, 2020, 4:17 PM), https://www.nytimes.com/article/george-floyd.html [https://perma.cc/4L6W-BSA5] (“George Floyd, a 46-year-old African-American man, died . . . after being handcuffed and pinned to the ground by a white police officer’s knee in an encounter that was captured on video and incited large protests . . . in the weeks and months that followed.”).
[3]. Dan Levin, Colleges Rescinding Admissions Offers as Racist Social Media Posts Emerge, N.Y. Times (July 2, 2020), https://www.nytimes.com/2020/07/02/us/racism-social-media-college-admissions.html [https://perma.cc/WZ8E-EC7R]; accord Sarah Brown, As Racist Posts Circulate, Some Colleges Rescind Admission Offers. Others Say Their Hands Are Tied, Chron. Higher Educ. (June 4, 2020), https://www.chronicle.com/article/as-racist-posts-circulate-some-colleges-rescind-admission-offers-others-say-their-hands-are-tied [https://perma.cc/J7XC-RUJV] (“As protests and unrest roil the country following the killing of George Floyd in Minneapolis, more than a dozen colleges have publicly responded to outrage over racist social-media posts by incoming students—and several, mostly private institutions, have swiftly rescinded admission offers.”).
[4]. See Levin, supra note 3 (noting revocation of admission offers by both Marquette University and Xavier University).
[5]. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019).
[6]. In addition to the example addressed immediately below involving Missouri State University, the First Amendment freedom of speech was cited by Terisa C. Riley, chancellor of the University of Arkansas–Fort Smith, in her June 2020 decision not to rescind an admission offer to an incoming freshman who made social media posts that included “content perceived as offensive, racist, and threatening.” Press Release, Terisa C. Riley, Chancellor, Univ. of Ark.–Fort Smith, Chancellor Riley on Social Media Complaint Reviews (June 19, 2020), https://news.uafs.edu/news/5287 [https://perma.cc/RWL5-KXQ4]. Riley explained that she “contacted the University of Arkansas System General Counsel and reviewed the content of the post. It was determined that while the posts may be offensive and show clear inconsistencies with our core values, we had no legal recourse due to the First Amendment’s protection of Freedom of Speech.” Id. Riley added that “[i]n order to take any further disciplinary action through our Student Code of Conduct, the content would have to constitute a ‘true threat’ in the eyes of the law,” and that “because the post did not identify a particular protest that was being held or target a particular individual, the post was considered rhetorical hyperbole, not a true threat.” Id.
[7]. Clif Smart, Balancing Rights and Responsibilities When Our Values Are Offended, Mo. St.: Presidential Updates (June 2, 2020), https://blogs.missouristate.edu/president/2020/06/02/balancing-rights-and-responsibilities-when-our-values-are-offended/ [https://perma.cc/74UJ-AJA4].
[8]. Id.
[9]. Id.
[10]. See Frederick Schauer, In the Shadow of the First Amendment, in Charlottesville 2017: The Legacy of Race and Inequity 63, 64 (Louis P. Nelson & Claudrena N. Harold eds., 2018) (“Supreme Court decisions dating . . . to the 1960s have made clear that not only does the Constitution not recognize the category of hate speech, but it also plainly prohibits targeting speakers because their message is racially hateful, hurtful, or outrageous.”).
[11]. Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).
[12]. The Supreme Court has held that several types of speech fall outside the ambit of First Amendment protection. See United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion) (listing unprotected categories of expression as including incitement to violence, obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography, fraud, true threats, and “speech presenting some grave and imminent threat the government has the power to prevent”). The Court’s “plurality opinion in Alvarez represents [its] most recent effort to catalog categories of unprotected speech.” G. Edward White, Falsity and the First Amendment, 72 SMU L. Rev. 513, 517 (2019). The Court has not carved out a new brand of unprotected speech since it declared child pornography illegal in New York v. Ferber, 458 U.S. 747 (1982). See Dan T. Coenen, Freedom of Speech and the Criminal Law, 97 B.U. L. Rev. 1533, 1545 (2017) (“In the thirty-three years since Ferber, the Court has not identified a single additional category of wholly unprotected speech.”).
[13]. See infra Part I.
[14]. See infra Part II.
[15]. See infra Conclusion.
[16]. Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2359 (2020) (Breyer, J., concurring in judgment in part and dissenting in part).
[17]. 354 U.S. 234 (1957).
[18]. Marjorie Heins, Priests of Our Democracy 161 (2013). The notion of a “majority” in Sweezy, as used by Heins, apparently comes from her linking the four-justice plurality opinion authored by Chief Justice Warren, Sweezy, 354 U.S. at 235–55, with the two-justice opinion concurring in the result written by Justice Frankfurter, id. at 255–67.
[19]. Sweezy, 354 U.S. at 243 (plurality opinion).
[20]. See id. at 235 (“The ultimate question here is whether the investigation deprived Sweezy of due process of law under the Fourteenth Amendment. For the reasons to be set out in this opinion, we conclude that the record in this case does not sustain the power of the State to compel the disclosures that the witness refused to make.”).
[21]. Id. at 250.
[22]. Paul Horwitz, Grutter’s First Amendment, 46 B.C. L. Rev. 461, 482 (2005).
[23]. See id. at 482–83 (calling the language “worth quoting at length”).
[24]. Sweezy, 354 U.S. at 255–67 (Frankfurter, J., concurring in result).
[25]. Id. at 262–63.
[26]. Id. at 263 (emphasis added) (quoting Univ. of Cape Town & Univ. of the Witwatersrand, The Open Universities in South Africa 11–12 (1957)).
[27]. Judith Areen, Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, 97 Geo. L.J. 945, 971 (2009).
[28]. Id. at 972.
[29]. James Leonard, Judicial Deference to Academic Standards Under Section 504 of the Rehabilitation Act and Titles II and III of the Americans With Disabilities Act, 75 Neb. L. Rev. 27, 29 (1996); accord David M. Rabban, From Impairment of Contracts to Institutional Academic Freedom: The Enduring Significance of the Dartmouth College Case, 18 U.N.H. L. Rev. 9, 23 (2019) (“Justice Felix Frankfurter laid the foundation for the First Amendment right to institutional academic freedom. . . .”).
[30]. See James D. Gordon III, Individual and Institutional Academic Freedom at Religious Colleges and Universities, 30 J. Coll. & U.L. 1, 1 (2003) (“Individual academic freedom involves the freedom of an individual faculty member to teach, to research, and to speak as a citizen.”).
[31]. Aurora Temple Barnes, Guns and Academic Freedom, 53 Gonz. L. Rev. 45, 71 (2017/2018).
[32]. Richard H. Hiers, Institutional Academic Freedom or Autonomy Grounded Upon the First Amendment: A Jurisprudential Mirage, 30 Hamline L. Rev. 1, 8 (2007).
[33]. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in result) (quoting from the Univ. of Cape Town & Univ. of the Witwatersrand, The Open Universities in South Africa 11–12 (1957) to support the proposition that an essential freedom of a university is the power “to determine for itself on academic grounds . . . who may be admitted to study”).
[34]. The term “arguably” in this sentence is purposefully used. That is because “Justice Frankfurter left the precise meaning of ‘academic grounds’ ambiguous and undefined. As a result, he set a potentially dangerous precedent by not distinguishing between academic freedom on academic and nonacademic grounds, wherein the former has been accorded Constitutional protection, but the latter has not.” Robert A. Caplen, The “Fifth” Freedom: Freedom From Impermissible Expansion of Academic Freedom to University Admissions, 36 Sw. U. L. Rev. 1, 14 (2007) (footnote omitted). William Van Alstyne illustrates an example of what clearly would be a nonacademic ground:
[S]uppose the selection of a given textbook were made by a given teacher or university professor because of a desire to befriend the particular publisher whose text one concedes to be poorer than that provided by other publishers, but whom one nonetheless felt a passionate desire to befriend. This is not a selection made on academic grounds. Accordingly, it should receive no first amendment academic freedom deference.
William W. Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review, Law & Contemp. Probs., Summer 1990, at 79, 137 (footnote omitted).
[35]. Scott Jaschik, Admissions Offers Revoked Over Racist Comments, Inside Higher Ed (June 22, 2020), https://www.insidehighered.com/admissions/article/2020/06/22/colleges-reverse-admissions-offers [https://perma.cc/BQ9Y-X4FL].
[36]. Id.
[37]. 438 U.S. 265 (1978).
[38]. Id. at 312 (opinion of Powell, J.) (emphasis added).
[39]. Mark G. Yudof, Three Faces of Academic Freedom, 32 Loy. L. Rev. 831, 855 (1987).
[40]. 539 U.S. 306 (2003).
[41]. Id. at 329.
[42]. See id. at 311 (“This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School . . . is unlawful.”).
[43]. 474 U.S. 214 (1985).
[44]. Id. at 226 n.12.
[45]. Id. (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978)).
[46]. See, e.g., Mawakana v. Bd. of Trs. of the Univ. of D.C., 926 F.3d 859, 864 (D.C. Cir. 2019) (asserting that in Ewing the Supreme Court held “that deference to academia is appropriate in certain circumstances” (emphasis added)).
[47]. See Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Cir. 2000) (“‘Academic freedom’ is a term that is often used, but little explained, by federal courts.”).
[48]. Alan K. Chen, Bureaucracy and Distrust: Germaneness and the Paradoxes of the Academic Freedom Doctrine, 77 U. Colo. L. Rev. 955, 959–60 (2006); accord J. Peter Byrne, Academic Freedom: A “Special Concern of the First Amendment”, 99 Yale L.J. 251, 253 (1989) (“The problems are fundamental: There has been no adequate analysis of what academic freedom the Constitution protects or of why it protects it. Lacking definition or guiding principle, the doctrine floats in the law, picking up decisions as a hull does barnacles.”).
[49]. Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 239 (2000) (Souter, J., concurring in judgment).
[50]. Frederick Schauer, Is There a Right to Academic Freedom?, 77 U. Colo. L. Rev. 907, 921 (2006) (emphasis added and omitted).
[51]. Id. at 920.
[52]. See Clay Calvert, Professional Standards and the First Amendment in Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, 91 St. John’s L. Rev. 611, 620 (2017) (contending that the notion of academic freedom today “remains nebulous”).
[53]. Catherine Gewertz, Yes, Colleges Can Rescind Admission Offers. Here’s What Educators Need to Know, Educ. Wk. (June 19, 2019), https://www.edweek.org/ew/articles/2019/06/19/yes-colleges-can-rescind-admission-offers-heres.html [https://perma.cc/E6M6-QCAB].
[54]. Leslie Postal & Annie Martin, Students’ Racist Social Media Posts Prompt University Investigations, Raise Free Speech Questions, Orlando Sentinel (June 13, 2020, 5:30 AM) (quoting Howard Wasserman), https://www.orlandosentinel.com/news/education/os-ne-admissions-universities-racist-posts-20200613-bnqgz5rzlvey5oxzgqgj745k5u-story.html [https://perma.cc/K6WD-M3ZP].
[55]. Justin Mattingly, University of Richmond Rescinds Admissions Offer to Student Over ‘Offensive and Racially Charged’ Video, Rich. Times-Dispatch (June 24, 2020), https://richmond.com/news/local/university-of-richmond-rescinds-admissions-offer-to-student-over-offensive-and-racially-charged-video/article_39bc6db6-196f-573b-9359-dadd6af95cd2.html [https://perma.cc/89EX-8F8Y].
[56]. See Restatement (Second) of Contracts § 90(1) (Am. Law. Inst. 1981) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”); see also Eric Alden, Rethinking Promissory Estoppel, 16 Nev. L.J. 659 (2016) (providing a comprehensive overview and critique of the doctrine of promissory estoppel).
[57]. See Postal & Martin, supra note 54 (quoting Wasserman).
[58]. Rodney A. Smolla, The Meaning of the “Marketplace of Ideas” in First Amendment Law, 24 Commc’n L. & Pol’y 437, 438 (2019).
[59]. Id. at 464. This is not to say, of course, that the marketplace of ideas theory is free from criticism. See, e.g., G. Michael Parsons, Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas, 104 Minn. L. Rev. 2157, 2159–60 (2020) (contending that “the marketplace of ideas rests upon little more than slogans and fictions” and asserting that it has morphed into “a straitjacket of wishful thinking”).
[60]. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); see also Robert L. Kerr, From Holmes to Zuckerberg: Keeping Marketplace-of-Ideas Theory Viable in the Age of Algorithms, 24 Commc’n L. & Pol’y 477, 478 n.3 (2019) (“Holmes’s dissent represents the setting of the marketplace of ideas cornerstone in Supreme Court jurisprudence . . . .”).
[61]. See Enrique Armijo, The “Ample Alternative Channels” Flaw in First Amendment Doctrine, 73 Wash. & Lee L. Rev. 1657, 1696 (2016) (“Marketplace theory defines the First Amendment’s primary function as facilitating a process by which truth can be reached.”); Rodney A. Smolla, Free Speech in an Open Society 8 (1992) (“[F]or Holmes the benefit of the marketplace was not the end but the quest, not the market’s capacity to arrive at final and ultimate truth but rather the integrity of the process.” (emphasis omitted)).
[62]. Clay Calvert, Stephanie McNeff, Austin Vining & Sebastian Zarate, Fake News and the First Amendment: Reconciling a Disconnect Between Theory and Doctrine, 86 U. Cin. L. Rev. 99, 124–25 (2018).
[63]. See Leonard M. Niehoff & Deeva Shah, The Resilience of Noxious Doctrine: The 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias, 22 Mich. J. Race & L. 243, 250 (2017) (noting that Justice Holmes’s dissent in Abrams explains that free speech advances democratic goals when “ideas, opinions, and facts compete for our allegiance in a free market; through this competition we entertain alternative possibilities; as a result of this consideration and analysis we arrive at the truth; and that truth empowers us to participate constructively as informed citizens of our democracy”).
[64]. 385 U.S. 589 (1967).
[65]. Id. at 603 (alteration in original) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)).
[66]. Healy v. James, 408 U.S. 169, 180–81 (1972) (emphasis added) (quoting Keyishian, 385 U.S. at 603).
[67]. Supra notes 65–66 and accompanying text.
[68]. Matal v. Tam, 137 S. Ct. 1744, 1751 (2017) (calling it “a bedrock First Amendment principle” that “[s]peech may not be banned on the ground that it expresses ideas that offend”); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).
[69]. Matal, 137 S. Ct. at 1763. But see Clay Calvert, Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact of Matal v. Tam on Two Strands of First Amendment Jurisprudence, 27 Wm. & Mary Bill Rts. J. 829, 833, 837 (2019) (arguing that “[e]quating offensiveness with viewpoint discrimination in Tam—holding that offensiveness and viewpoint discrimination are one in the same—and in subsequent lower-court rulings unnecessarily blurs doctrinal lines,” and contending that “giving offense sometimes may be a viewpoint, but giving offense is not always a viewpoint” (footnote omitted)).
[70]. See Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (calling it “a core postulate of free speech law” that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys”); Matal, 137 S. Ct. at 1765 (Kennedy, J., concurring in part and concurring in judgment) (stating that viewpoint discrimination is “a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny”); Rosenberger v. Rector & Visitors, 515 U.S. 819, 829 (1995) (“When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination.” (citation omitted)).
[71]. Supra notes 53–55 and accompanying text.
[72]. The Supreme Court has held that “[w]ith respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.” Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (emphasis added). The emphasized portion of that quotation is important because it suggests that students who are enrolled in classes at public universities are entitled to be there. In contrast, a prospective student who merely holds a conditional or rescindable offer of admission and who has yet to start taking classes is not even “there,” as it were.
[73]. Evan Gertsmann, Should Colleges Rescind Admission Offers Based on Racist Social Media Posts?, Forbes (June 11, 2020, 2:43 PM), https://www.forbes.com/sites/evangerstmann/2020/06/11/should-colleges-rescind-admission-offers-based-on-racist-social-media-posts/#2bbf085e6392 [https://perma.cc/LR8N-TWCN].
[74]. See, e.g., Apply: Freshman, Univ. Fla., https://admissions.ufl.edu/apply/freshman [https://perma.cc/2KPQ-YFWL] (describing the University of Florida’s freshman admissions process as “holistic” and requiring applicants to submit “one personal essay that will allow the admissions staff to get to know who you are as a person”).
[75]. Arthur L. Coleman & Jamie Lewis Keith, Coll. Bd., Understanding Holistic Review in Higher Education Admissions 4 (2018), https://professionals.collegeboard.org/pdf/understanding-holistic-review-he-admissions.pdf [https://perma.cc/5A6X-EDKB].
[76]. See id. (“[H]olistic review is mission aligned, meaning that the unique history, character, aims, vision, and educational and societal contributions of an institution set a critical stage for decision-making in admissions.” (emphasis omitted)).
[77]. See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”).
[78]. Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 13, 138 S. Ct. 2448, 2460 (2018).
[79]. Id. at 2465 (“The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests.”).
[80]. Id. at 2501 (Kagan, J., dissenting).
[81]. Id. at 2502.
[82]. Iancu v. Brunetti, 139 S. Ct. 2294, 2305 (2019) (Breyer, J., concurring in part and dissenting in part).
[83]. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2234 (2015) (Breyer, J., concurring in judgment).
[84]. Janus, 138 S. Ct. at 2502 (Kagan, J., dissenting); see also Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 255 (“Self-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.”).
[85]. See supra notes 58–63 and accompanying text.
[86]. E.g., Nicole Rodriguez, Prospective Student Who Posted Racist Comments Online No Longer Coming to UF, Indep. Fla. Alligator (July 9, 2020), https://www.alligator.org/news/campus/prospective-student-who-posted-racist-comments-online-no-longer-coming-to-uf/article_6ade6db0-aaac-11ea-af36-774113117e66.html [https://perma.cc/PUE2-UHUQ] (reporting that one prospective incoming student who had been offered admission wrote on social media “that two Black girls were ‘ret***ed,’ ‘most definitely crackwh***s,’ and people who do ‘nothing for society’” (alterations in original)).
[87]. E.g., Devi Shastri, Marquette Rescinds Offer of Admission to Lacrosse Player Over Snapchat Post on George Floyd’s Death, Milwaukee J. Sentinel (June 2, 2020, 6:46 PM), https://www.jsonline.com/story/news/education/2020/06/02/marquette-rescinds-offer-lacrosse-player-over-george-floyd-snapchat/5311865002 [https://perma.cc/3Q2R-ERKU] (reporting that a Snapchat post by an incoming Marquette student read “[s]ome ppl think it’s ok to (expletive) kneel during the national anthem so it’s ok to kneel on someone’s head. come at me. y’all brainwashed” (alteration in original)).
[88]. 315 U.S. 568 (1942).
[89]. Id. at 572.
[90]. The phrase “most forms of speech” is deliberately used because the Supreme Court has carved out several categories of speech from First Amendment protection. See supra note 12 and accompanying text (identifying unprotected categories of expression).
