Once upon a time, students at the University of Illinois were required to attend a morning service in the university chapel, listen to a faculty member read “a portion of the New Testament,” “repeat the Lord’s Prayer,” and “sing religious hymns.” A student named Foster North objected; the university (a state institution) expelled him. North sued, but in March 1891 the college prevailed before the Illinois Supreme Court. Until the late 1960s, the University of Illinois’ practice was regarded as constitutional, due to a doctrine called in loco parentis. The university, the reasoning went, related to the students as parents relate to their children. As the Illinois Supreme Court wrote in its judgment against North, the university “had the lawful right to adopt all reasonable rules and regulations for the government of the university, and in pursuance of that right did adopt the rule in question.”
The rules universities could frame by invoking in loco parentis were almost limitless and frequently bizarre. Until 1970 women students at Whitman College in Walla Walla, Washington, were forbidden from “spend[ing] the night in a motel or hotel without special permission from their parents or college officials.” Other colleges banned jeans, Sunday dancing, blasphemy—or political activities.
The beginning of the end of in loco parentis came with the civil rights movement in the 1960s. The US Supreme Court ruled in 1961 that a public institution could not expel students for taking part in a protest. The Free Speech Movement in Berkeley was in part an attempt to counter the paternalism of in loco parentis. The notion that American universities are, or once were, precincts of perfect freedom of expression that have since lost their way relies on a considerable amnesia. And bizarrely, it wasn’t until after the abolition of in loco parentis, Sunday dancing bans, and the like—roughly since the 1970s—that public discourse in the United States became fixated on supposed threats to free speech on campus.
Historically, this became very clear in the late-20th-century panic around “speech codes”: language rules against harmful or hurtful speech. Many universities, wrote Jonathan Rauch in his 1993 book Kindly Inquisitors, “are doing exactly what a university, of all institutions, should not do: defining offensive speech as quasi-violent behavior, and treating it accordingly.” The debate about such supposed speech codes ran alongside the panic around political correctness. Time magazine famously claimed that “nowhere is the First Amendment more imperiled than on college campuses.” This fear found its expression in legislation. A Collegiate Speech Protection Act was proposed in Congress, but it never passed. California, on the other hand, enacted the Leonard Law in 1992, which prohibits private universities from punishing students for statements protected by the First Amendment. It (of course) exempted religious institutions.