Document Type

Article

Publication Date

2020

Abstract

This Article examines the tension between a prospective college student's First Amendment freedom of speech and a public university's unenumerated, inchoate right of institutional academic freedom. The friction between these interests was cast in high relief in 2020 when several schools confronted dual issues: (1) whether to rescind offers of admission to individuals who later were discovered to have engaged in offensive speech, and (2) whether revoking admission offers because of odious, hateful messages would violate the constitutional right of free expression. The Article argues that the right of institutional academic freedom-albeit maddeningly amorphous-encompasses a public institution's ability to choose the students it wishes to teach. This notion first seeped into the U.S. Supreme Court's jurisprudence in 1957 with Justice Frankfurter's concurrence in Sweezy v. New Hampshire. This principle, in turn, should afford a public university greater legal leeway to rescind an admission offer based on an individual's offensive, yet presumptively protected, speech than it would possess in expelling a fully enrolled student who is actively taking classes. The Article contends that while the First Amendment generally protects an individual's right to engage in offensive speech, the Amendment does not give one the right to enroll in classes at a public university and it should not be weaponized to interfere with a holistic admissions process. In the process of addressing these issues, the Article discusses unprotected categories of speech, as well as the Supreme Court's recognition that a university should be a diverse marketplace of ideas.

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