Protests on college campuses are taking place across the country, but there’s a lot of confusion about the line between free speech and punishable action. See if you can spot the lie alongside the two truths below.

A. The vast majority of universities are heavily dependent on federal money, so taxpayers should have a say about what happens on campus.
B. Congress cannot demand decorum on campus amidst anti-Israel or even anti-Semitic protests.
C. Universities have no obligation to restrain campus protests.

Let’s take these statements one at a time:

A. TRUTH! While public and private institutions differ with regard to their Constitutional obligations, for example free speech protections, as a matter of policy nearly all universities (with just a handful of exceptions) functionally draw a large percentage of their budgets from federal coffers. These funds are received primarily either directly in the form of grants, or indirectly in the form of federally backed student loans, 93% of which are held by the U.S. Department of Education. While that doesn’t mean that every detail of campus life can or ought to be decided by the democratic process, claims that universities are wholly private entities or that it’s illegitimate in some way for voters to have a say in university affairs don’t recognize the heavy nature of public investment in higher education.

B. TRUTH! The First Amendment restricts government action constraining speech, and it’s true that the federal government cannot demand, for example, that protesters refrain from speech with anti-Semitic content. As the president of the University of Florida, Ben Sasse, wrote in his exemplary letter to UF students, “Our Constitution protects the rights of people to make abject idiots of themselves.”

C. LIE! While it’s true that all Americans, including students, have First Amendment rights, some protests have gone beyond speech into the realms of action and racially targeted harassment. While public universities in particular must respect protected speech (and many private ones have policies to similar effect), any university that takes federal money must also comply with federal laws protecting civil rights on campus, including Title VI, which protects students from discrimination on the basis of shared ancestry or racial characteristics.

Examples of behavior that ought to engender Title VI lawsuits are excluding Jewish students from parts of campus or class, targeted harassment of Jewish students as they attempt to utilize their educations, or speech that rises to the level of threats of violence. This is all behavior schools have an obligation under federal civil rights law to curtail.

And of course, universities, even public universities, as well as municipal governments are allowed to impose reasonable time, place, and manner restrictions on speech, as well as to enforce other laws, like those against trespass and camping.

Bottom Line: 

Universities have both the obligations to allow expression of protected speech, and to maintain the level of functionality and order that makes it possible for their students of all racial backgrounds to attend class and take advantage of educational opportunities.