Tsesis, Alexander, Campus Speech and Harassment (November 23, 2016). Minnesota Law Review, Vol. 101, 2017. Available for download at SSRN: https://ssrn.com/abstract=2874919

“A theoretical question that runs through the debate on the constitutionality of campus speech codes asks whether free speech values are best preserved by categorical rules or balancing factors. Whether campus codes are constitutional should be analyzed through a doctrinal and statutory framework developed outside the university settings, in cases involving incitement, true threats, fighting words, and harassment. The context of the debate is informed by widely publicized verbal confrontations on U.S. campuses. Much disagreement exists about the legitimacy of universities hosting safe spaces and giving trigger warnings while prohibiting hate speech and micro-agressions. Various Supreme Court and lower court opinions inform the proper administration of university campuses in a manner conducive to the educational needs of the student body. Doctrinal avenues exist for creating effective campus codes. Beyond constitutional holdings, discussions on this matter should be informed by statutory anti-harassment policy. Arguably, federal civil rights law requires colleges to take affirmative steps to prevent harassment on campuses. This framework provides the legal foundation for examining and analyzing the constitutionality of campus speech codes that have been promulgated by universities around the country, including the University of Chicago and the University of California.”