Students at institutions public and private, in states red, blue, and purple, are asking that their institutions not only acknowledge racist history but also address the continuing presence and lasting repercussions of racism. Colleges and universities are confronting unpleasant facts: Founders or leaders grew rich on the slave trade, supported racist policies with harsh and long-lasting effects, or otherwise discriminated. Not long ago, many campuses were not open to blacks and other minorities, either by law or practice. Too many students of color are still subjected to racial slurs, suspected as intruders rather than acknowledged as students, or assumed (consciously or not) to be less able.
How should colleges and universities respond to protests and demands for greater diversity and inclusivity among faculty, students, and administrators? For actions against insensitive leaders or staff? For renaming of buildings, resources, or programming? What about counter-protests or other reactions, ranging from critical commentary to threats of violence? Do laws dictate what can, should, or must be done?
Legal constraints rarely dominate, but there are legal issues pertinent to many of these issues.
Laws Prohibiting Discrimination and Harassment. Where discrimination or harassment against minority students is so severe, persistent, or pervasive that it denies or limits the ability to benefit from educational programs, the institution must correct the problem. This does not mean waiting until something is unlawful; earlier action can have many benefits, including avoiding legal risk. While the presence of an offensive statue is unlikely to be unlawful, racist conduct or speech by faculty or others may be.
Free Speech. At public institutions, community members have a constitutional right to free speech. At many private institutions, free speech is an essential value even if not legally guaranteed. Free speech principles generally bar punishment for speech, but these rights are not absolute. The First Amendment does not protect narrow categories of true threats, incitement of imminent lawless action, or defamation. Even at public institutions, not every area is even a “limited public forum”; institutions may adopt “time, place, and manner” restrictions. For public employees, free speech is particularly complex, requiring fact-specific analysis. Responding to hateful speech with more speech—an institutional condemnation of racist acts, for example—is well within the institution’s own right to speak.
Due Process and Fairness. At public institutions, employees and students are typically entitled to due process—notice of what is prohibited and fair procedures. Private institutions often provide protections by policy or contract. Due process may require that the institution follow set procedures before taking action against bad conduct, but there are usually lawful ways to take swift action in egregious situations. Simpler and clearer procedures may meet legal requirements and avoid endless disputes.
Contracts. An institution may have a binding agreement to name a building or place a statue. While it is sometimes possible to alter these agreements, it may not be easy or quick. Contracts may govern other significant issues. Analyzing these contracts may reveal legal ways to reach institutional goals or suggest approaches to modify the agreements.
Affirmative Action. Under current law, institutions may use “narrowly tailored” race-conscious admissions policies to promote diversity (but not to remedy the nation’s racist past). As Larry White previously explained in this column, the Supreme Court is revisiting this law, and “higher education’s commitment to diversity could face its most serious challenge since the 1950s.” Whatever the court’s decision, colleges and universities will continue to struggle for legally permissible ways to promote diversity. But many of the changes activists seek— greater recognition of past and present racism, more multicultural programs, mental health and other services sensitive to the special challenges of minority students—do not have legal barriers.
Legal considerations—sometimes conflicting—do not dictate the best response to a controversial student newspaper article, dueling protesters and counterprotesters, or demands to remove a statue. They certainly do not tell us how to ensure that minority students feel welcome and heard. Addressing these challenges requires listening, reflection, and a willingness to try to understand others’ perspectives—all things that higher education seeks to teach.
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