In a much-publicized congressional hearing on December 5, 2023, the presidents of Harvard, MIT, and the University of Pennsylvania faced pointed questions by the House Education and Workforce Committee regarding antisemitism on college campuses. Several exchanges—and public debate thereafter—focused on whether certain violent or politically-charged speech would violate the universities’ Code of Conduct, particularly the sections prohibiting harassment and discrimination.
These three private universities certainly aren’t the only institutions facing challenging questions regarding students’ and employees’ political speech. In fact, the issue is more challenging for public institutions. The hearing raises an opportunity for a refresher on public agencies’ and public schools’ legal obligations when it comes to the tangled intersection of free speech and unlawful harassment and discrimination. Below are a few broad principles to keep in mind.
Free Speech vs. Harassment and Discrimination
Public agencies, including public schools, are subject to the First Amendment of the U.S. Constitution, which prohibits them from infringing on employees’ or students’ free speech rights. (For more on public employees’ right to free speech, see this LCW blog post.) At the same time, these entities are subject to a variety of laws that require them to act to address harassment and discrimination based on an employee’s or student’s protected status.
These are distinct but overlapping legal obligations. On the one hand, freedom of speech does not absolve a school or agency from responding to reports of harassment or discrimination. If the speech is sufficiently severe or pervasive to create a hostile environment under the applicable anti-discrimination law, the entity has a duty to take prompt and effective steps to eliminate the hostile environment and prevent the harassment from reoccurring.
On the other hand, disciplining speakers or preventing them from expressing protected speech can violate the Constitution. Moreover, if an organization’s written policies prohibiting harassment, discrimination, or bullying are too expansive—for example, a bullying policy that contains a prohibition on “offensive” speech—there is a risk that a court could find the policies vague and overbroad and thus invalid under the First Amendment.
Public schools and agencies, like the courts, must balance these legal obligations. Whether the speaker had a First Amendment right to say something—in a classroom, at a protest, or elsewhere—is a crucial question, but the inquiry should not end there. Even if the school or agency chooses not to shut down the speech or discipline the speaker, the institution can take creative measures such as issuing a statement to the community or offering students and employees alternatives to exposure to the speech.
Conduct and Targeting an Individual Are Not Prerequisites for Taking Action
One point of confusion that arose from the congressional hearing is whether speech must cross over into conduct in order to constitute harassment. Under federal and state anti-discrimination laws, the answer is no. Speech based on protected status, including epithets, chants, derogatory comments, slurs, and jokes, can rise to the level of unlawful harassment if it sufficiently alters the conditions of employment or interferes with a student’s access to educational benefits or opportunities.
Moreover, speech need not target an individual in order to constitute harassment under anti-discrimination laws. Speech issued to the public—for example, a chant at a rally or media published online—can rise to the level of harassment if it meets the legal criteria for creating a hostile work or educational environment.
The Importance of Enforcing Policies Consistently
As if the above reminders are not complicated enough, public agencies and schools should also be mindful that enforcing harassment and discrimination policies inconsistently will almost certainly give rise to legal challenges. An individual subject to discipline may claim impermissible viewpoint discrimination under the First Amendment if they can point to a circumstance in which the entity did not similarly enforce its policies against a speaker who expressed a different viewpoint. There is an additional risk of a discrimination claim if these differing viewpoints are tied to a protected status—for example, if an entity imposes discipline for or restrains speech denigrating one ethnic or religious group but not another.
As the congressional hearing on December 5 illustrated, the intersection of free speech and anti-discrimination laws can raise more questions than answers. Please seek counsel when faced with complex issues involving both legal obligations.