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Do students have First Amendment rights at a private university, or can the university expel or punish students for saying something it doesn't like?


I don't understand why people need examples, but the cases I'm thinking of are (1) posting a controversial meme on the message board, or (2) questioning the concept of "microaggressions" during class (This latter case happened at a public university, but I wonder if it would be treated differently at a private one)

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    please add an example. Are we talking "black armband" Tinker or Sexual Innuendo Fraser or Student paper Kuhlmeier or insultng Clothes Guiles or drugs Morse or Social Media BL?
    – Trish
    Apr 8 '21 at 10:40
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    I'm wondering if the vagueness is deliberate and this is a gotcha question. Apr 8 '21 at 11:48
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    And there we are. "Saying something it doesn't like" was actually "distruptively using resources provided by the university". Apr 8 '21 at 12:13
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    @Studoku the dismissed student "adequately alleges" that the university "used the professionalism standards as a pretext for engaging in content-based or viewpoint discrimination," and the court has not ruled on the matter. The purported reason for the dismissal is unprofessional behavior, but the court may yet find that the real reason was retaliation for "saying something it didn't like."
    – phoog
    Apr 8 '21 at 15:07
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    Yes, the request for examples seems unnecessary, as the answer virtually never depends on what conduct is at issue. The fact that discrete actions are not the kinds of things the First Amendment protects doesn't change whether the First Amendment applies to the university in the first place.
    – bdb484
    Apr 8 '21 at 18:00
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Only in California.

The First Amendment provides a student essentially no protection from discipline by a private university. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) ("The text and original meaning of those Amendments, as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech."); Vaynberg v. Seton Hall Univ., No. CIV.A. 09-4999 FSH, 2010 WL 4510904, at *5 (D.N.J. Oct. 26, 2010) ("In order for the First Amendment to apply, the challenged conduct must be deemed 'state action.' Seton Hall is a private, Catholic university. ... Because there is no evidence from which a reasonable fact finder could conclude that Seton Hall's conduct relevant to this lawsuit was “state action,” Seton Hall is entitled to summary judgment.")

Some states, however, have passed laws requiring private schools to provide some of the protections of the First Amendment. The most robust of these is California's Leonard Law, which essentially requires private schools to adhere to the First Amendment. Other states also recognize some measure of free-speech rights for students at private institutions. For instance, both the Pennsylvania and New Jersey supreme courts have held that their state constitutions' free-speech clauses (which, unlike the First Amendment, say nothing about the government) protected peaceful protesters who distributed leaflets on the campuses of private colleges.

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It depends on just how "private" the university is. Generally this boils down to money and where its sourced from. While there are a number of universities that are private, a good majority of those do recieve public grant money from a government entity. Because of this, they must be compliant with the U.S. Constitution or risk losing the grants... which can be a large amount of money for the school. This isn't so much a restriction imposed on private schools so much as it is on government. Paying private entities to do what the government is constitutionally not allowed to do is unconstitutional... the private entity becomes a government one for purposes of Constitutional validity.

That said, there are schools that lack any government grant funding and are perfectly within their rights to have strict rules about what speech is permissible. Typically, these will involve some contract element to them so that it's the student voluntarily giving up a right rather than the school restricting them, under pain of expulsion if the student breaches the contract.

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    I could be mistaken, but I think my previous comment has been deleted. For the record, this answer remains incorrect. First Amendment protection from university discipline has essentially nothing to do with money; the question is whether the university acts on behalf of the state (or is in California, as discussed above).
    – bdb484
    Apr 9 '21 at 9:10
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The First Amendment affects what the government can restrict. It does not prevent a private entity from restricting how its resources are used, imposing behaviour standards on their premises or choosing who they do business with.

There are limits to this- refusing service based on a protected class is illegal for example- but neither example given comes under this.

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    how its resources It seems like a stretch. It was literally a question in class (see the link)
    – MWB
    Apr 8 '21 at 12:38
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    @bobcat Are you trying to say a university class is not a resource? Apr 8 '21 at 12:39
  • Students were expected to ask questions during class. The school just didn't like the thrust of the question.
    – MWB
    Apr 8 '21 at 13:29
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    @bobcat I'm not sure how you think that's relevant. The first ammendment isn't forcing Reddit to accept particular opinions- Reddit chose to allow it because they are a private entity. I'm also not convinced they did since the poster has since been deleted. Likewise, Reddit would be well within their rights to remove that content. Apr 8 '21 at 14:00
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    The university's dismissal of the student does not appear to have anything to do with use of resources. Rather, it appears to have been justified by an alleged breach of behavioral standards. There is furthermore no need to implicate resources, because both private and public universities are competent to enforce behavioral standards on their students without regard to use of resources.
    – phoog
    Apr 8 '21 at 15:11

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