Photography by Martha Castro
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This – the First Amendment of the United States Constitution – has been a hot topic on the Barnard and Columbia campuses over the last few months. With the administrations imposing restrictions on expression so unprecedented that they have made national news and received legal threats from the New York Civil Liberties Union, many are left wondering if and how they are even constitutional.
The first thing to know about the First Amendment on college campuses is that its application depends on if the institution is public or private. If it is public, the First Amendment applies, as it receives government funding for the purpose of public accessibility. If it is private, it does not.
Barnard’s new Policy for Safe Campus Demonstrations states that the “College, as a private institution, is not subject to the First Amendment of the U.S. Constitution.” Many people think the discussion stops here, with Barnard and other private institutions simply having immunity from the laws of the Constitution, but that is not the case.
Private institutions generally rely on tuition and endowments, not government funding. However, barely any private colleges are universities are truly private. The vast majority of so-called private institutions still receive some degree of aid from state and/or federal governments. There are very few exceptions, and Barnard is not one of them.
Given that Barnard receives aid from both the federal and New York government, as disclosed on its financial aid website, it is not an entirely “private” institution. Consequently, it is not necessarily exempt from the laws of the First Amendment as Barnard claims it is.
Richard Vedder, a professor emeritus of economics at Ohio University, published in an article for Forbes titled “There Are Really Almost No Truly Private Universities” that “constitutionally suspect speech codes or attempts to restrict free oral expression to very narrow free speech zones probably should have no place on any campuses directly or indirectly receiving any governmental support” and that “the private-public distinction no longer makes much sense.”
Though Barnard has not acknowledged this legal loophole, it exists. Because of that, this case is far from closed.
As of early March of 2024, Barnard has imposed two major restrictions on expression in the Spring 2024 semester .
First, Executive Vice President for Strategy and Chief Administrative Officer Kelli Murray announced the College’s “New Policy for Safe Campus Demonstrations” in an email to students on February 20. The policy restricts acceptable demonstrations to a “designated demonstration area” that is only “available to students, faculty, staff, and Barnard-recognized student groups for Demonstrations from 2:00 pm to 6:00 pm on Monday through Friday when classes are in session (excluding reading days, exam periods, and College holidays).”
Second, Vice President for Campus Life and Student Experience and Dean of the College Leslie Grinage emailed students with new guardrails regarding dorm decorations, prohibiting any and all decorations on room and suite doors aside from “official items placed by the College,” such as name tags.
Under the First Amendment, restrictions on expression like protest or symbolic speech in the form of decorations must not discriminate based on content. For example, a hypothetical content-based restriction might prohibit protests or decorations that mention Israel or Palestine. Such a restriction would be unconstitutional, as it would only restrict expression involving that specific content.
To be content-neutral and thus constitutional, a restriction must only be based on the time, place, and/or manner of the expression. Barnard itself acknowledges this in the demonstration policy, stating that “Courts have long held that the First Amendment right to engage in free speech is not infringed by reasonable and content-neutral time, place, and manner restrictions.”
Both the demonstration policy and the dorm decor policy are content-neutral in time, place, and manner restrictions. However, there are other aspects of the restrictions that make them constitutionally questionable.
Being content-neutral does not automatically render a restriction on speech constitutional. First Amendment cases are subject to strict scrutiny, meaning laws and policies relating to its suppression must be the least restrictive means to achieve a compelling interest.
Barnard’s stated interests in “inclusion and nondiscrimination” inform these new policies. Neither the demonstration policy nor the dorm decor policy are the least restrictive means to achieve those things.
The demonstration policy proclaims itself to “set forth reasonable, content-neutral time, place, and manner restrictions for campus demonstrations that have long been permitted under the First Amendment.” However, per a New York Times article on responses to Barnard’s various restrictions on political speech, “more than 1,000 Columbia and Barnard faculty, students and alumni have signed a letter saying that academic freedom is under attack at Barnard,” proving that the campus community does not find the policies “reasonable” at all.
It is fundamental to the Barnard experience that students feel included and not discriminated against both in general and in the expression of their ideas. Barnard’s mission statement sets the goal of “empowering young women” to engage in “intellectual risk-taking” no matter their background or identity. However, that does not appear to be the true interest of the College.
In the application of the dorm decor policy, for example, the Columbia Students for Justice in Palestine shared an Instagram post documenting which types of decorations Barnard chose to take down. Despite the policy stating it would remove “any remaining items” not provided by the College, a sign that said “Rosenbury stop the lies, genocide is televised” was taken down, and other decorations – even those that mention Palestine – were left.
This is a clear example of a content-based restriction that directly conflicts with the administration’s own policy and the First Amendment, and reveals Barnard’s true intention to protect itself, rather than its students and their freedom of expression.
Even if Barnard was enforcing these policies in a content-neutral manner, they are notable to prove a compelling enough interest for the restrictions, as many students feel harmed rather than helped by them. Further, the Barnard administration is not seeking to achieve that interest through the least restrictive means possible, as banning all decorations on students’ doors is more restrictive than necessary.
The First Amendment is an extremely nuanced legal framework, and its application is far from straightforward. Barnard’s identity as a private institution is ambiguous, thus it is unclear whether they are violating the First Amendment or not. This legal ambiguity proves that Barnard cannot simply rely on their interpretation of the law, and that this fight is far from over.