The Tipping Point of Expressive/Associational Freedoms in Higher Ed
The contours of legally protected freedoms in higher education continue to evolve rapidly—and are as highly controversial in, and out of, court as ever. Some of the energy around these issues has been driven by recent decisions of the U.S. Supreme Court regarding the First Amendment, including a landmark decision regarding academic rights of religious colleges. But higher education must also contend with social and political forces challenging the historic autonomy of universities to define the contours of expression for themselves, in and outside the classroom.
For instance, 2020 saw institutions become targets of federal investigations regarding free expression rights; new Title IX regulations require institutions to tailor conduct rules to First Amendment requirements; and some courts have expressed concerns that bias response teams can “chill” speech. Needless to say, the battles over expressive freedoms are hardly abstract—defamation claims, faculty extramural speech litigation, the general retreat from tenure and its protections, rights of administrators to perform their duties with “due respect,” collective bargaining rights, the competing rights of students in and outside the classroom, etc.
How can higher education reclaim its distinctive American role in leading vibrant dialogue on issues of major public importance while effectively delivering its core educational mission?
Are we at a tipping point in the evolution of expressive freedoms for higher education, especially when colleges return to normal operation following the pandemic?
Get answers to these pressing questions and get crucial, actionable takeaways so you can:
- Understand the implications of recent Supreme Court decisions for religious and non-sectarian colleges – make all necessary adjustments for your institution to ensure you are in compliance.
- Be better prepared to revise policy and practice around Title IX requirements relating to free expression – adjust your policies and procedures to limit legal liability to your institution.
- Anticipate the expressive rights issues that will dominate 2021.
- Consider the implications of the changing composition of SCOTUS and a new federal administration – prepare to pivot and adapt as needed so you do not get caught off guard.
- Become more conversant with critical legal memes such as “ministerial exception” and “forum analysis”.
Peter Lake is a Professor of Law, Charles A. Dana Chair, and Director of the Center for Excellence in Higher Education Law and Policy at Stetson University of College and Law and a Senior Higher Education Consulting Attorney with Steptoe & Johnson, PLLC.
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