Private Property and Higher Ed

By: Peter G. Klein

The US higher-education world has been rocked the last two years by student protests, “free-speech” controversies, and allegations of faculty misconduct at schools as diverse as Missouri, Yale, Middlebury, Berkeley, and Evergreen State College. You’ve all heard about safe spaces, microaggressions, intersectionality, snowflakes, claims that certain forms of speech constitute violence, and so on. Professors have been assaulted by protesters and even fired or pressured to quit for expressing politically controversial ideas (though some are protected). Certain private groups have been banned, even from meeting off campus. Students, faculty, and staff are subjected to endless hours of sensitivity training, despite evidence that such programs increase, rather than alleviate, tensions among groups. Some schools are already experiencing blowback, while others are taking advantage of these controversies to differentiate themselves from rivals. Pundits are predicting campus craziness as the next hot-button issue in US presidential politics. What is to be done?

While I greatly admire the efforts of groups like FIRE to protect the rights of faculty and students accused of politically incorrect speech or action, I disagree with them on one fundamental point. The First Amendment protects freedom of expression for students and professors at state-owned and publicly funded colleges and universities, and it’s perfectly appropriate for the courts or regulatory agencies to discipline schools that punish speech. 

At private schools, however, it’s a different story. Restrictions on the speech or behavior of students or faculty may violate a contract — for instance, a university that states a public commitment to free speech, then disciplines a student for saying or doing something politically incorrect, may have breached its contract with the student and could be liable for damages. A college that includes protections for academic freedom in its agreement with faculty, then fires a professor for something he said in the classroom (or tweeted or wrote in an op-ed or shouted at a rally) may be guilty of breach of contract. Of course, the school could argue that the student violated the code of conduct or the professor is guilty of moral turpitude — the boundaries of which would also be specified by contract. The point is that these are not “free-speech” issues or political issues at all, but private, contractual disagreements, which should be resolved by arbitration or by the courts. The First Amendment has no bearing on these situations.

As Murray Rothbard argued in Ethics of Liberty, in a free society there are no free-speech rights, only property rights. Property owners may encourage or restrict speech or other forms of behavior (though they may be liable for damages if such restrictions violate some prior contractual agreement). More generally, as Rothbard put it, “not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.”

For this reason, the libertarian position on recent campus controversies is to fight not for free speech, but for property rights. Higher education should be privatized, taking these issues out of the political sphere. Should Charles Murray or Ann Coulter be invited to lecture? Should students be disciplined for boycotting classes? Should a professor be fired for saying the wrong thing? It’s up to the owners to decide. Students can choose to attend or not, faculty can seek employment or quit, financial supporters can donate or withhold funds, all based on their free and voluntary decisions to associate with one school or another. I’ve written before in defense of diversity in higher education — not just the viewpoint diversity championed by groups like Heterodox Academy, but also diversity of strategies and structures. Let colleges and universities be large or small, diversified or specialized, highbrow or lowbrow, hippie or conservative, secular or religious, tolerant or intolerant — who are outsiders to judge? A thousand flowers blooming and all that. 

Update: Commenter Phil Miller asks a good question: if a private school accepts federal grants and federal student loans, shouldn’t it too be subject to the Bill of Rights? In other words, what is the boundary between “public” and “private” in higher education? I’ve raised the same issue before: elite private universities like Stanford and Chicago receive a higher percentage of their total budget from governmental sources — mainly research grants and contracts — than many state colleges. In the context of free speech, however, I would make the distinction based on ownership. The University of Wisconsin or South Georgia State College are state-owned, with ultimate decision authority vested in a board of regents or curators appointed by the governor. Private colleges and universities are usually chartered as nonprofit corporations (or, more recently, public benefit corporations), with residual control rights held by trustees or other officers. Even if the latter receive state funds they remain private organizations and hence not fully bound by the rules applying to government agencies and state-owned enterprises. But it is a tricky distinction. The solution, of course, is full privatization — less Stanford and Chicago, more Grove City and Hillsdale (and TED talks, Udemy, Mises Academy, etc.).