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Most noteworthy case law about free speech rights at educational institutions concerns public institutions and has therefore centered on federal and state constitutional guarantees of free expression. The situation is different at private colleges, because private institutions are non-governmental actors and their actions do not affect First Amendment rights. Many educational institutions have nevertheless adopted policies that claim to protect student and faculty rights to free speech. Last week in Lee v. Yale University the Second Circuit asked what meaningful contractual rights Yale’s policy grants its employees, and answered: essentially none.
Bandy Lee was a voluntary Assistant Clinical Professor of Psychiatry at the Yale School of Medicine when she wrote on social media that a supporter of former President Trump had a “shared psychosis” with him. As a result of her post, Yale did not renew her appointment. She sued, asserting among other claims that Yale had breached her contract and the implied covenant of good faith and fair dealing that exists in all contracts. She pointed to statements in Yale’s Faculty Handbook supporting academic freedom, including a statement that “a university must do everything possible to ensure within it the fullest degree of intellectual freedom.” Her case was dismissed, and she appealed to the Second Circuit Court of Appeals.
The Second Circuit was not impressed with the language thatLee argued established a contract, holding that “the statements that Lee relies on as the genesis for this alleged contract reduce merely to generalized support for academic freedom," rather than a specific guarantee that Lee would not lose her job for making political statements related to her area of academic expertise on her private social media.
The Second Circuit’s decision in this case does not mean that a faculty member, or a student, at a private university will never be able to bring a successful contract claim based upon language guaranteeing free speech in faculty or student handbooks or other university policies. Some university policies may contain language that is more specifically protective of speech or more specifically restrictive of the university’s ability to impose discipline, or to terminate or not renew an appointment, in response to speech. Courts in other jurisdictions may interpret similar language differently, weighing the importance of free speech to academia in the balance. Some states have laws to protect academic freedom. (Connecticut has a law that prevents employers from restricting their employees’ exercise of FirstAmendment rights, but it did not apply to Lee because she was a volunteer.) Faculty members with tenure may have additional contractual protections, at least against termination. And, of course, students and faculty at public schools have significant constitutional protections.
All of that said, the decision is a blow to academic freedom. Within the Second Circuit (and elsewhere, to the extent that the decision may be persuasive to other courts that it does not bind) members of academic communities at private schools should be aware that “generalized”language about free speech is likely insufficient to protect them if they engage in controversial speech that the school does not like. At Yale in particular, non-tenure faculty now know that the university is willing to target them for speech and that the federal courts have concluded that the university’s policies permit it to do so.
