BLOGWhy the First Amendment Applies Differently to Public and Private Universities

By Kara Schmidt Posted on: | July 12, 2018

The House Subcommittees on Healthcare, Benefits, and Administrative Rules and on Intergovernmental Affairs held a joint hearing in May to discuss the importance of free speech on college campuses. Much of the conversation focused on public universities, but several attendees, including Ranking Member Jamie Raskin, questioned whether private universities should also be included in the discussion.

To support his position that private religious universities should be subject to First Amendment criticisms just as public universities are, Raskin referenced Thomas Jefferson. Raskin claimed that Jefferson’s failure to institute a school of divinity at the University of Virginia was evidence that Jefferson believed “theology and religious dogma were at war with reason and science.”

This is quite a stretch.

From Jefferson’s statements on the matter, as explained in a letter to a friend, his motivations lie elsewhere. Jefferson wished to foster the freedoms of speech, thought, and religion by keeping the university separate from any particular sect. Jefferson noted that various denominations would “have the free use of our library, and every other accomodation [sic] we can give them; preserving however their independance [sic] of us & of each other.” This letter shows that Jefferson’s concern was for the independence of belief and thought.

But, ultimately, it doesn’t matter what Jefferson’s views on this topic were. The fact remains that the University of Virginia was founded as a public university, not a private one. So his argument does not even apply to private universities.

As Alliance Defending Freedom Senior Counsel Tyson Langhofer testified before the committee, there is a difference between government action and private action, and the Constitution only applies to the former. For that reason, private universities should be free to “carry out their education in the way that they choose,” including “as it’s dictated by their religious beliefs,” he said.

The First Amendment protects the freedom of private universities to determine their own priorities and values, unrestrained by government control. And any governmental interference with that freedom, even in the name of free speech, would actually violate the First Amendment.

That’s not to say free speech on private universities isn’t important. On the contrary, free speech is an essential part of the learning process at any university, regardless of whether it is publicly or privately funded. Without the freedom to express unpopular ideas without fear of retaliation, viewpoint diversity is stifled, and students receive less quality training in how to think critically about opposing views. A college without freedom of speech loses something essential to its nature as a nurturer of the life of the mind.

But even though the benefits of free speech on campus apply equally to private and public universities, and private universities should seriously consider not restricting speech on their campuses, they cannot and should not be coerced by the government into doing so. Instead, private universities should recognize the merits of a vibrant marketplace of ideas and make changes to their policies as they deem fit. And society can influence that decision through students’ choices of university attendance or through leveraging donor support of private schools.

We must acknowledge and support the independence of private universities from government control. Otherwise, we will end up violating the First Amendment in the name of free speech.

Kara Schmidt

Contributing Writer

Kara is an Areté Academy Delegate and is pursuing a career in law.

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