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The Constitution Need Not Decide How Harvard Regulates Speech

By Emily N. Dial
By Randall L. Kennedy, Contributing Opinion Writer
Randall L. Kennedy is the Michael R. Klein Professor at Harvard Law School. His column runs bi-weekly on Thursdays.

Nearly forty years ago, then-University President Derek C. Bok wrote an open letter championing a libertarian ethos of free speech at Harvard that would satisfy even its most ardent defenders. His views, he noted, were “in keeping with the main lines of Constitutional thought.”

Six years later, Bok’s words were put to the test. When a Harvard undergraduate hung a confederate flag in the window of her room, Bok rebuffed demands to remove the flag.

“To disapprove of a particular form of communication,” he wrote in an essay for the Boston Globe, “is not enough to justify prohibiting it.”

“Our society has wrestled with this problem for many years. Interpreting the First Amendment, the Supreme Court has clearly struck the balance in favor of free speech,” he continued.

Despite recognizing that Harvard is a private institution and thus outside the sweep of the First Amendment, Bok nevertheless maintained that Harvard should not “have less free speech than the surrounding society — or than a public university.”

Harvard’s free speech guidelines, adopted by the Faculty of Arts and Sciences just a year prior, likewise insist that the University adhere to First Amendment jurisprudence.

“When there is a need to weigh the right of freedom of expression against other rights,” the guidelines resolve, the balance struck should be “consistent with established First Amendment standards.”

Today, at least nominally, leading figures at Harvard continue to embrace that belief, which guided the widely derided congressional testimony of former University President Claudine Gay. (Asked whether calls for genocide by Harvard students would violate Harvard’s code of conduct, Gay replied “it depends on the context.”)

Shortly thereafter, professor Charles Fried, my magnificent recently deceased colleague, defended Gay, positing that her response was correct given prevailing First Amendment law and Harvard’s commitment to acting in accordance with it.

The Harvard community, however, ought not be doctrinaire in its reliance on the First Amendment. Harvard should govern speech on campus according to a separate standard anchored solely by academic concerns.

Unlike judges, who interpret the First Amendment taking into account a wide range of considerations, academics have (or should have) a single priority: to zealously fulfill the central missions of the University — education and the protection and creation of knowledge. Off-the-rack judicial rules are meant for general application; they are not narrowly tailored to educational institutions, much less any particular university.

Harvard sociologist Nathan Glazer made this point aptly: “The introduction into the university of legal principles and practices drawn from the operation of the body politic and civil society would hurt rather than help the universities and colleges.”

“The advancement of knowledge,” Glazer observed, “seems to demand its own settings and its own rules, and these are not the same as those that the democratic process requires.”

The approach I urge would usually reach the same conclusions as those reached by following First Amendment law. I believe, for instance, that Bok was right in refusing to censor the Confederate memorialist. In other circumstances, though, a narrower standard could provide needed leeway for the University to be less permissive.

For example, if Harvard were bound by the First Amendment, the University would be compelled to permit students to chant, in the middle of Harvard Yard, “no means yes, and yes means anal” or “send the Blacks back to Africa”or “exterminate the Jews!” — all phrases that, standing alone, are protected when uttered in a public space like Cambridge Common or the quad at the University of Massachusetts.

Ought Harvard be so permissive? Maybe so. As Bok noted years ago, censorship typically backfires, bringing more attention to vile speech than it would otherwise receive. But I can also envision conscientious university officials reaching the opposite conclusion. At the very least, the latter alternative should be up for debate — not mooted by uncritical reliance on prevailing First Amendment doctrine.

Furthermore, rather than eschewing its status as a private institution, Harvard should take advantage of it.

The distinction between public and private universities ought to be championed; it facilitates a healthy pluralism in higher education. Automatic deference to the First Amendment prevents educators at private institutions from setting standards that might better fit their academic ambitions.

Whether the University should permit the chants I mention above is a question that should be answered by academics attuned to Harvard’s specific institutional imperatives — not by judge-made doctrine hammered out from afar.

Harvard is facing aggressive challenges to its autonomy, including spurious investigations and threats to withdraw tax-exempt status and federal funding. In the face of this onslaught, the University should decide where to demarcate its boundaries on speech based on its own values and commitments.

In this menacing environment, defending Harvard’s independence demands making clear its distinctive role and prerogatives.

Randall L. Kennedy is the Michael R. Klein Professor at Harvard Law School. His column runs bi-weekly on Thursdays.

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