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Columbia University has pending an investigation of group text messages that were leaked to a student-run news website.

This is different from the average college free speech case in that the students in question are student-athletes. It is generally accepted that student-athletes agree to some increased regulation of their lives in exchange for the ability to represent their university on an athletic team. As one court has put it, student-athletes “normally and reasonably forgo a measure of their privacy in exchange for the personal and professional benefits of extracurricular athletics.” Hill v. National College Athletic Association, 865 P.3d 633, 637 (Cal. 1994).

At the same time, there must be some limits on how intrusively a college can behave in the name of protecting the reputation of its athletic program. A university cannot claim to be a bastion of freedom and openness and then operate like a totalitarian state with regard to its athletes, who are—after all—also students at the university. So while we would probably agree that a college can require its athletes to submit to physical examinations in the context of athletic participation, for example, we would almost certainly balk at a college installing cameras in the bedrooms of its student-athletes. The question is, where do we draw that line?

Columbia University has presented us with just such a question. Most people would likely find the wrestlers’ text messages— on the Columbia student news site Bwog—to be racially and sexually offensive. But they are private messages exchanged among friends. If there is to be any semblance of freedom and autonomy for college students, the content of their unwillingly exposed private conversations (assuming they do not threaten violence or otherwise constitute illegal activity) simply cannot be made fair game for official action. To do otherwise strips students of the rights to free speech and privacy in a way that is irreconcilable with the values of a free society, regardless of whether the students involved are athletes or not.

The counterargument is that by donning the school colors and taking the field, these athletes have given up any right to privacy. In The Washington Post today, Sally Jenkins :

The wrestlers surrendered their right to say anything they wanted when they put on their branded athletic gear, funded by university fees and gifts, and walked out into public arenas as supposed examples of Columbia’s virtues.

This may be true from a legal standpoint. Indeed, legally speaking, Columbia (like any private university) can make almost any rules it wants regarding the conduct of any of its students, as long as those rules are clearly communicated to students and followed by the university. But these students didn’t say these things out loud and to the public while wearing their “branded athletic gear” and in “public arenas,” and they are not people in authority at Columbia. They were not representing the university and had no reason to think their comments would ever be considered that way. This controversy arose from a private conversation that was leaked by an unknown party, and no reasonable person could interpret these remarks as reflecting the opinions of Columbia University.

Furthermore, the fact that a university can do something doesn’t mean that it should do it. This is an institution whose official Rules of University Conduct proclaim a very strong commitment to students’ right to free speech. And these athletes are, first and foremost, students. Columbia’s policy promises that in service to its “special role in fostering free inquiry,” the university “cannot and will not rule any subject or form of expression out of order on the ground that it is objectionable, offensive, immoral, or untrue.” The policy goes on to say that “[w]e expect that members of our community will engage in public discussions that may confront convention, and free expression would mean little if it did not include the right to express what others may reject or loathe.” (Emphasis added).

Certainly, when it comes to expression in public, or in the course of representing their university in athletic competition, student-athletes may be subject to some constraints beyond those placed on other students, and subject to athletic (though not disciplinary) sanctions if they violate those constraints. But these were private communications among friends. Yes, someone leaked them to the press—and people are free to read them and judge the individuals who spoke in them, as they are doing. But for the university to officially investigate these students, athletes or not, for their private communications betrays its commitment to free speech in order to make an ultimately political point about the content of that speech. That’s just taking it too far.