What Private Universities Teach Us About “Free Speech” on Private Property

Peter G. Klein of Mises.org challenges the notion of ‘free speech’ on private property by looking at how private universities reflect that reality. ¬†However, private universities that have contracts that don’t allow for ‘free speech’ and stifle the free expression of professors may find themselves facing market pressures that public universities don’t have to face.

from https://mises.org/blog/private-property-and-higher-ed
Peter G. Klein
The US higher-education world has been rocked the last two years by student protests, “free-speech” controversies, and allegations of faculty misconduct at schools as diverse as Missouri, Yale, Middlebury, Berkeley, and Evergreen State College. You’ve all heard about safe spaces, microaggressions, intersectionality, snowflakes, claims that certain forms of speech constitute violence, and so on. Professors have been assaulted by protesters and even fired or pressured to quit for expressing politically controversial ideas (though some are protected). Certain private groups have been banned, even from meeting off campus. Students, faculty, and staff are subjected to endless hours of sensitivity training, despite evidence that such programs increase, rather than alleviate, tensions among groups. Some schools are already experiencing blowback, while others are taking advantage of these controversies to differentiate themselves from rivals. Pundits are predicting campus craziness as the next hot-button issue in US presidential politics. What is to be done?

While I greatly admire the efforts of groups like FIRE to protect the rights of faculty and students accused of politically incorrect speech or action, I disagree with them on one fundamental point. The First Amendment protects freedom of expression for students and professors at state-owned and publicly funded colleges and universities, and it’s perfectly appropriate for the courts or regulatory agencies to discipline schools that punish speech.

At private schools, however, it’s a different story. Restrictions on the speech or behavior of students or faculty may violate a contract — for instance, a university that states a public commitment to free speech, then disciplines a student for saying or doing something politically incorrect, may have breached its contract with the student and could be liable for damages. A college that includes protections for academic freedom in its agreement with faculty, then fires a professor for something he said in the classroom (or tweeted or wrote in an op-ed or shouted at a rally) may be guilty of breach of contract. Of course, the school could argue that the student violated the code of conduct or the professor is guilty of moral turpitude — the boundaries of which would also be specified by contract. The point is that these are not “free-speech” issues or political issues at all, but private, contractual disagreements, which should be resolved by arbitration or by the courts. The First Amendment has no bearing on these situations.

As Murray Rothbard argued in Ethics of Liberty, in a free society there are no free-speech rights, only property rights. Property owners may encourage or restrict speech or other forms of behavior (though they may be liable for damages if such restrictions violate some prior contractual agreement). More generally, as Rothbard put it, “not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.”


Private Property and Higher Ed

The US higher-education world has been rocked the last two years by student protests, “free-speech” controversies, and allegations of faculty misconduct at schools as diverse as Missouri,

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