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Ohio St. L. J.


Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic freedom to protest — conceived as a right to learn — should be seriously considered by institutional decision-makers when they are creating rules and policies governing on-campus student dissent. Otherwise, student voices will be deemed irrelevant and protests will be unfairly reduced to unjustifiable outbursts by young people craving attention — something to be either tolerated as mere annoyances or extinguished as threats to order. But if administrators and professors take the time to listen to what students are saying and explore the issues underlying their grievances, much can be gained. I argue that colleges and universities move away from the question, “how do we stop our student activists,” toward the question, “what are students learning from their activism and what, in turn, can the institutions learn from it?”

As I have posited in this Article, one way to start the process of learning from what student activists have to say is to include students’ rights in a balancing test when speech is disputed — e.g., in student protests involving invited speaker interruption, unauthorized building and office occupation, and even various forms of disruption in cyberspace. Such a test should be articulated in university policies and made binding through contract law. While student protestors may not always win in the balancing, at least their academic freedom right to learn, and I would argue teach others, will be part of the conversation. My hope is that recognition that student protest has positive value to the university community and is an essential part of academic freedom will begin to shift attention to the substantive issues underlying student grievances. In this way, student activism will truly be an opportunity for all to learn.

My article proceeds in four parts. Part I analyzes the historical context of racial exclusion in American higher education and connects it to modern efforts to promote racial justice to illustrate a continuum of students pressing for this type of change. Part II outlines the inadequacies of student academic freedom as articulated by courts defining this freedom in relation to the First Amendment. Part III proposes a new mechanism based on contract law that would incorporate major higher education policy statements on student academic freedom that conceptualize this freedom through a learning principle as legally binding obligations between universities and their students. Finally, Part IV explores how my proposed student academic freedom would balance the tensions between free speech and student demands for racial justice by employing a test that takes both “the marketplace of ideas” and student freedom to learn into account.