In the antediluvian days when I attended Colgate, one of my history professors liked to draw partially overlapping circles known as Venn diagrams on the blackboard to illustrate situations where countries shared some characteristics but not others. Legally speaking, public and private universities are like the circles in a Venn diagram. In certain respects they are subject to the same laws and regulations; in other respects, they aren’t. For example, the federal laws concerning employment discrimination and environmental protection apply to both public and private universities because those laws derive from Congress’ commerce power and apply to all organizations engaged in interstate commerce. Likewise, the federal law that protects the privacy of educational records applies to both publics and privates because Congress made compliance with that law a condition of federal financial assistance. By contrast, state open records laws apply only to public institutions because those laws are based on the state’s authority to regulate agencies that the state owns and operates.What about the federal antitrust laws – the laws designed to promote economic competition, which I understand formed part of the basis for Delta Kappa Epsilon’s recent suit against Colgate? Jurisprudence regarding application of the antitrust laws to educational institutions has a history too complex to describe here. Suffice to say that while neither public nor private colleges are immune from antitrust law, the courts have been disinclined to fully apply antitrust doctrine to the schools’ non-commercial activities. Several years ago, an antitrust complaint challenging Hamilton College’s residential policy was dismissed because the federal court found that the plaintiffs failed to properly define a relevant market for antitrust purposes.One of the most important areas where the law treats public and private institutions differently is the U.S. Constitution. Public institutions are fully subject to the constraints contained in the Bill of Rights and the 14th Amendment. Private institutions are not. The distinction reflects the fundamental purpose of the Constitution itself – as a limit on the exercise of power by the government. For example, the First Amendment says, “Congress shall make no law” respecting an establishment of religion, or abridging the freedom of speech, or of the press, etc. Applying the 14th Amendment, which was adopted after the Civil War, the courts have held that the protections of the Bill of Rights also apply to actions by state government. But they do not apply as against private parties. (There is an exception to this generalization, but it is an exceedingly narrow one. Courts will apply the Constitution to a private organization deemed to be a “state actor,” i.e. where the organization’s conduct was compelled by the government; or the organization exercises a function that is traditionally the exclusive prerogative of government; or the organization is deeply intertwined with government regarding the activity in question.) In 1978, Congress approved a “sense of Congress” resolution exhorting both public and private colleges not to subject students to “discrimination” or “official sanction” on the basis of constitutionally protected speech or association. However, such resolutions, which express Congress’s view about a matter, are not legally binding. To be sure, the fact that private universities are not bound by the precepts of the Bill of Rights does not mean that they are unmindful of them. Many private institutions choose to follow policies that reflect constitutional values. For example, while the constitutional guarantee of due process does not apply to private colleges, many have built into their disciplinary systems protections similar to those afforded by public institutions. Similarly, many private institutions have adopted policies to protect freedom of expression. People may certainly debate whether a particular residential or student life system is desirable. But where private institutions are concerned, that is a question of policy – not of constitutional law. Indeed, there is substantial basis for a private university to claim its own First Amendment right to adopt such a system. In Sweezy v. New Hampshire (1957), a landmark case on academic freedom, Justice Felix Frankfurter described the “four essential freedoms” of a university as the right “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught and who may be admitted to study.” A university dedicated to extending its educational program to campus life beyond the classroom may argue persuasively that the right to adopt a particular residential system is a corollary of the right to determine “what may be taught” and “how it shall be taught.”

Robert Donin is General Counsel of Dartmouth College. The views expressed are those of the author and do not necessarily reflect the views of Dartmouth College.