Speech First, Equality Last

By Brian Soucek. 

Universities have been put in an impossible situation. They are liable under nondiscrimination laws if they allow hostile speech to interfere with someone’s education, but they are increasingly said to be liable under the Free Speech Clause if they do anything to stop speech before that point. Put simply, universities are liable for acting until the moment when they are liable for not having acted.

This conundrum—what this Article calls the Double Liability Dilemma— is the result of remarkably successful litigation brought in courts across the country by a new, conservative free-speech organization called Speech First. Three courts of appeals, with a fourth perhaps soon to come, have recently enjoined universities from enforcing their harassment policies. These schools now find themselves unable to act to counteract hostile speech based on race or sex before it is too late. Full Article.