Are universities schools? The question seems almost silly to ask: of course universities are schools. They have teachers and students, like schools. They have grades, like schools. There are classes and extracurricular activities, also like schools. But recent writings on the issue of “free speech on campus” have raised the improbable specter that universities are less educational institutions than they are public forums like parks and sidewalks, where a free-wheeling exchange of ideas and opinions takes place, unrestricted by any sense of academic mission or school discipline. My short essay has three parts. In the first part, I examine and explain the rhetoric advancing what I call the “break” view of speech at universities, which situates universities as types of institutions that are more similar to traditional public forums than they are to high schools or middle schools. In the second part, I look at how lower courts have applied the principles of the Court’s educational cases (the Tinker line) in contexts other than universities to see how the weighing and balancing of interests proceeds in those cases. In the third part, I argue for the “continuity” view, which advocates for applying the Tinker line of cases to universities in a way that takes seriously the idea that universities are in fact schools and not pure “marketplaces of ideas,” where speech generally goes unregulated, and restrictions on speech can only be made in the face of imminent threats.
LawReview
