The Constitution protects private rights from state interference. Certain statutes purport to protect individuals’ rights from interference by private actors as well. Two examples are the Leonard Law, a California law that prohibits private universities from disciplining students for speech protected against state interference by the First Amendment, and Title VI, which conditions universities’ federal funding on their refraining from racial discrimination. But by extending individuals’ rights to include protection from interference by private universities, do these laws unconstitutionally interfere with private universities’ own expressive rights?
This Essay assesses whether expressive association claims could protect private universities from statutory restrictions on their freedom to admit and retain students. First, it examines the Leonard Law and concludes that the law limits private universities’ ability to restrict student speech on the basis of viewpoint discrimination. Next, this Essay argues that universities’ constitutional right of expressive association trumps their students’ right of free speech under the Leonard Law. This insight relies both on strengthened protection in recent years for association claims and on unique features of the Leonard Law. Finally, the Essay explores how the principles that make the Leonard Law unconstitutional do not extend to the prohibitions against race discrimination under Title VI, thus providing a limit for universities’ right of expressive association.