I’m sex-positive, and Boston College has the right to ban condoms on campus

In Should colleges be able to ban condoms on campus? Dr. Justin J. Lehmiller, a social psychologist slash sex columnist goes through 470 words on a LEGAL ISSUE before warning us “I’m not a legal expert by any stretch of the imagination.” Truer words, my friend.

Boston College (a Jesuit Catholic school) recently threatened a student group with diciplinary action if they continued to give out free condoms and sexual health pamphlets in violation of school policy.

Lehmiller asks:

The overall message the school seems to be sending is that restricting access to condoms and promoting abstinence will discourage students from having sex and promote better sexual health. But will it work and do colleges even have the legal authority to ban condoms among students? No and no.

Lehmiller is right on the first question. Banning condom distribution is a dumb move from a health-and-safety standpoint, and Lehmiller spends most of the next 300 or so words on why banning condoms won’t keep kids from having sex. It’s clearly a policy with religious and social, and not protective, aims.

Then he wades into too-deep legal waters with this gem: “I realize Boston College is a private institution, but private institutions do not have a blanket right to tell individuals what they can say and do.” Justin, you do realize what the word private means, right?

If I own something, be it a house or my body, I don’t very much own it if I can’t exclude access to it upon the basis of my choosing. If I have a house party and I don’t like how someone is behaving I can send her home. If I don’t want to have sex with someone I can say no. That’s a big part of what it means to own something.

The Boston College administrators are not forcing any student to do or not do anything. They are making adherence to (unhelpful) rules a requirement to being on campus. They are exercising their right to exclude on the basis of their choosing.

Now there are limits that many, if not all, states have put on private business’ right to exclude. Most states do not allow business owners to refuse to serve customers on the basis of race. Right now San Francisco is suing a florist for allegedly refusing to create arrangements for a gay wedding on the basis of sexual orientation.

These laws infringe upon a business owner’s property rights in order to help ensure access to goods and services for groups who are often the victims of discrimination. In a society that respects property rights, we require more to infringe upon them than, “Your basis for exclusion is likely to have negative consequences.”

The actions of Boston College does not pass that test. There is, for example, absolutely no threat that students who want to distribute condoms will not be able to find a school which will allow them to do so.

Alright, having cleared that up, Lehmiller is confused about what free speech means:

I think (as does the ACLU) that you would be hard-pressed to find a court that says college students on any campus (public or private) do not have the right to talk to each other about safe sex or to share condoms in the United States of America, a country in which there is a constitutional right to freedom of speech and to privacy.

SMDH. No, no, no. Here’s what the ACLU actually said in the story Lehmiller linked to:

ACLU attorney Sarah Wunsch told WBZ the group may take legal action if the school presses the issue.

“Jack Dunn needs to think about the state’s civil rights act and its applicability to private parties,” Sarah Wunsch said. “They should not be threatening students with disciplinary action.”

Wunsch is saying that the school’s threatening disciplinary action against the condom distributors violates the Massachusetts Civil Rights Act. That’s neither a privacy nor a free speech issue, except that a law making threats and intimidation differently punishable when categorized as a “hate crime” is a form of thought police and a violation of free speech in and of itself. Either way, there is no way in hell the ACLU would win this case. Here are the criteria that must be met in order to violate MCRA:

  • Did the perpetrator select the victim because of his or her protected category or activity?
  • Did the perpetrator interfere with the victim’s fundamental constitutional rights or a secured right?
  • Were threats, intimidation or coercion involved?
  • Did the perpetrator use language or gestures based on the victim’s protected category or activity?
  • Has the perpetrator been involved in a pattern of similar conduct against other people of the protected category or against other people performing the same protected activity?
  • Is the perpetrator a member of a hate group?

These students have a constitution right to free speech and privacy. That doesn’t mean that they can enter into someone else’s private property and say and do whatever they want for as long as they want. It only means that the GOVERNMENT cannot make laws which abridge those rights. Boston College isn’t the government and isn’t making laws. It’s a private institution making rules.

So going back to Lehmiller’s questions of “will it work and do colleges even have the legal authority to ban condoms among students?” it will not work, it’s not intended to, and yet private colleges absolutely have the right to ban students from doing things you and most thinking people think they should be able to do.

Perhaps realizing that there is a difference between public and private property, Lehmiller waves it away with this declaration:

I would argue that there’s no such thing as a truly “private” university in the U.S. because all colleges and universities are the beneficiaries of some type of public funding, whether in the form of direct assistance, tax-exempt status or subsidies, federally funded grants to researchers (a portion of each grant goes directly to the university), or student financial aid provided by the government. In one way or another, we the taxpayers are footing part of the bill for all institutions of higher education and, in my book, that means all universities must abide by the same set of rules and therefore cannot impose restrictions on the rights of students.

Yes, what Lehmiller is saying would require the abolition of the public/private distinction and would require making all private colleges public. But until then, no.

Depriving college students of opportunities for peer-to-peer sex education and access to condoms is not only dangerous, but it is a violation of personal liberty. I realize that Boston College is trying to do the “moral” thing, but it is hard to see how withholding knowledge and restricting access to devices that can prevent infections and save lives accomplishes that.

College codes of conduct are restraints on personal liberty that are voluntarily entered into and departed from as students choose. If the students of Boston College don’t like the policies, they can leave. But depriving the administrators of Boston College the right to determine what conduct they will allow on their campus is a true violation of personal liberty from which there is no escape. It’s a violation of property rights which requires MUCH more justification than “this will have bad effects for the people who VOLUNTARILY choose to attend this school.”

I care about all this because Justin Lehmiller is doing good work, writing about sex from a positive, science-based perspective. And I want him to do this, and for more people to join him. But when he wades into this discussion, I want him to talk about what he’s an expert on, namely the studies indicating that this policy won’t work. But I don’t ever want him to take information about what works and what doesn’t and use it to advocate for violating my, or anyone else’s, property rights in order to achieve the world he wants to see.

In addition, with cases involving private parties interfering with birth control, it’s usually only the religious right which leaps to defend the property rights of parties doing odious things with them. I don’t want Boston College’s property rights to only be defended by people who will also advocate for using government force to stop girls under 15 from accessing emergency contraception over the counter.

This case really summarizes why I am writing Sex and the State. I want to vigorously, steadfastly defend freedom from actual coercion, which is altogether different from dumb private, voluntarily-entered-into policies.

Freedom requires both sides of the spectrum to get more consistent. I would love to see the day when the right wing disavows using government force to limit reproductive choice. And I anxiously await a time when the left wing affirms reproductive, sexual and personal freedom through cooperative and not coercive means.

Photo by robertelyov


  1. I support the BC students in fighting against something they think is wrong and wish them luck, even though it is probably a losing battle. Religious institutions tend to stick to their guns, no matter how backwards and out of date those guns are.

  2. Igor Gembitsky

    Awesome article. I love how you clearly Lehmiller’s work and ask strongly disapprove of his policy prescriptions. It captures the spirit of this blog and you as a person.

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