Universities Inadvertently Permit “Toxic” Environments: Free Speech and Private Institutions

The First Amendment is one of the most important amendments that protects democracy. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment protects pure speech (speaking and writings) and symbolic speech, which is nonverbal expression intended to communicate ideas. The Constitution protects “coarse expression as well as refined, and vulgarity no less than elegance” because “a society can be truly strong only when it is truly free.” Without the protection the Constitution provides, society would lack confidence in itself. The First Amendment is often used to push or oppose political and social change. In academic settings, the First Amendment is also used to protect professors’ rights under academic freedom. However, the jurisprudence of where these protected rights begin, and end are blurred.[7] Across the nation, there has been media coverage of faculty, students, and seasoned professionals sharing offensive, racist, and sexist comments. Some institutions have taken disciplinary action once they were made aware of the situation, or have taken action when they were pressured by members of the community. On the other hand, when made aware of offensive speech or expression, some institutions simply made a statement that they were aware of the situation and no disciplinary action followed. In most cases, the institutions that have not followed up with some form of disciplinary action, determined that the actor’s speech or expressions were protected by the First Amendment. Though these expressions may be protected under the First Amendment, it does not mean professors are not immune from the consequences of their actions. Within the last five years, there has been several instances where derogatory terms or slurs were used by professors in an academic setting. This Perspective will explore why administration in private institutions decide that no disciplinary action was necessary