The Constitution Need Not Decide How Harvard Regulates Speech

Randall L. Kennedy
The Harvard Crimson

Nearly forty years ago, then-University President Derek C. Bok wrote an open letter championing a libertarian ethos of free speech at Harvard that would satisfy even its most ardent defenders. His views, he noted, were “in keeping with the main lines of Constitutional thought. . . . Despite recognizing that Harvard is a private institution and thus outside the sweep of the First Amendment, Bok nevertheless maintained that Harvard should not “have less free speech than the surrounding society — or than a public university.” . . .  

The Harvard community, however, ought not be doctrinaire in its reliance on the First Amendment. Harvard should govern speech on campus according to a separate standard anchored solely by academic concerns . . . . For example, if Harvard were bound by the First Amendment, the University would be compelled to permit students to chant, in the middle of Harvard Yard, “no means yes, and yes means anal” or “send the Blacks back to Africa”or “exterminate the Jews!” — all phrases that, standing alone, are protected when uttered in a public space like Cambridge Common or the quad at the University of Massachusetts. . . . Ought Harvard be so permissive?

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