Speech and the First Amendment
consideration of controlling racial harassment at public colleges and
universities inevitably highlights a conflict between two fundamental
rights: that of students to learn in an environment free from unlawful
discrimination (under Title VI) and the right of free expression (under
the First and Fourteenth Amendments to the US Constitution).
Most public post-secondary institutions are recipients of Federal dollars,
and therefore are subject to Title VI. Under pronouncements of both the
US Department of Education (which oversees Title VI enforcement) and Federal
courts, such a school must take steps to prohibit racial harassment between
or among students.
Under the US Constitution, both Federal and state governments may not
serve to abridge a person's freedom of speech. Courts have long held that
a public educational institution acts on behalf of the state and, therefore,
may not unduly restrict the free speech rights of its students.
The Constitution does not guarantee one the right to subject another to
racial slurs; nevertheless, what some might deem racial harassment may
indeed be protected speech.
in the Winter 1999 Edition of In Brief