How can higher education balance its commitment to foster free speech and debate with its duty to protect students, faculty, and staff from discrimination and harassment, especially in the age of social media?
It’s just one of the conundrums colleges — and their legal counsels — face at a time when campuses are increasingly Ground Zero for “the most divisive, most problematic, most troublesome” debates of our time, said Stephen S. Dunham, vice president emeritus and general counsel emeritus at Pennsylvania State University and a higher education law expert. (He also has ties to the Bi-Co; his mother and grandmother attended Bryn Mawr College, and his brother went to Haverford College.)
“The law of higher education today is absolutely on the front page of the New York Times, the topics that all of us face as citizens,” he said to a crowd of about 80 people gathered in the Old Library on April 9 for the final Current Topics in Higher Education event this academic year. “Think about issues of what is a democracy, what is the role of citizenship, what are the roles of the government to the people and the people to the government.” He also cited diversity, equity, and inclusion; healthcare; and gun control as “all higher education campus issues of the first order.”
Dunham’s no stranger to big issues in higher ed. Over a 50-plus-year career, the Princeton undergrad and Yale Law School graduate has held top legal counsel positions, including at Penn State during the child sexual abuse scandal involving assistant football coach Jerry Sandusky and at Johns Hopkins and Duke Universities.
One of the biggest issues, as raised by Bryn Mawr General Counsel Brandyn Hicks during the fireside chat with Dunham, involves free speech.
“I love free speech as a doctrine,” he said. Perhaps surprisingly, he noted, the constitutional right doesn’t apply to private entities such as independent colleges, which often adopt the equivalent of the First Amendment as policy. But even though freedom of expression is broad — in a 1969 case involving the Ku Klux Klan, the Supreme Court ruled 9-0 that hate speech is protected — there are exceptions, such as defamation, obscenity, inciting illegal conduct, and sexual harassment, he said.
Bottomline? Dunham said balance depends on a close analysis to determine whether the free speech is protected or falls under one of the exceptions.
He also raised a fundamental concern. Historically, Dunham said, the First Amendment has depended on the free market of ideas, on “protecting the complete junk,” with the understanding that truth will eventually prevail.
“It is not at all clear that that’s still true,” he said, especially in a viral meme society. Should colleges and universities have “more authority to protect people, the victims of hate speech? [It’s] the big question for us today.”
During the 75-minute program, Dunham traced key moments in the evolution of higher education law. In a 1819 landmark case, New Hampshire tried to take over Dartmouth College and its curriculum because of unhappiness with its political direction. “Does that sound familiar?” Dunham said to a smattering of laughs. The Supreme Court ruled against the state, upholding the inviolability of the school’s charter contract.
Other milestones that he noted include a McCarthy-era case establishing the doctrine of academic freedom; the rise of federal regulation of universities receiving federal research funds; the establishment of student rights with the passage of anti-discrimination laws such as Title IX; and, finally, a decade of culture wars.
“That has revolutionized higher education law,” he said of this last, “and Brandyn’s job.”
For example, take the challenge of colleges adjudicating student conduct amid increased federal scrutiny of student activism—an issue Hicks raised. Dunham said that while the Supreme Court has ruled that judgments around academic misconduct fall to institutions, the changing federal guidance around Title IX is “leaving heads spinning.”
“I don’t have good advice to schools anymore,” he said. “The law changes constantly.”