Stop Invoking Virginia Tech to Punish Protected Speech
November 24, 2008
by Adam Kissel
Of particular note in the court order in Barnes v. Zaccari, the federal civil rights lawsuit filed after former Valdosta State University (VSU) student Hayden Barnes was expelled for posting a collage on Facebook.com protesting the construction of new parking facilities at VSU, is this excerpt:
For purposes of the motion to dismiss, the court determines that the inclusion of the word "memorial" by its mere utterance in a photo collage that was posted on an internet website simply cannot be rationally construed as likely to incite immediate violence, even in the wake of the Virginia Tech tragedy that the defendants allude to in their motion. Moreover, there is no indication that the language had the potential to cause any sort of substantial disruption on the VSU campus or in the classroom.
This is an important reminder from the court that simply invoking Virginia Tech or other incidents of severe violence on college campuses does not mean that a school can get away with declaring the most minor (or in this case nonexistent) references to violence some kind of actionable threat to campus security.
But this unacceptable argument is just what FIRE saw at Colorado College, where two male students were sanctioned after they put up posters parodying a Feminist and Gender Studies publication. Their so-called crime included the "juxtaposition of weaponry and sexuality," since the students had referred to a chainsaw and a sniper rifle in the parody. Dean of Students Mike Edmonds wrote that "in the climate in which we find ourselves today, violence—or implied violence—of any kind cannot be tolerated on a college campus." This spurious (and dangerous) argument landed Colorado College on FIRE's Red Alert list, reserved for schools demonstrating a severe and ongoing contempt for individual rights on campus.
And we saw it again at Lone Star College–Tomball in Texas, where a student group was censored after it distributed a jocular flyer listing "Top Ten Gun Safety Tips." The school's general counsel, Brian S. Nelson, stated that even the mere "mention of firearms and weapons" is inherently a "material interference" with the school's operations because it "brings fear and concern to students, faculty and staff." Nelson also stated that "the tragedy of Virginia Tech cannot be underestimated when it comes to speech relating to firearms—however 'satirical and humorous' the speech may be perceived by some." FIRE harshly criticized this regrettable disregard for the First Amendment in a letter to Lone Star College–Tomball President Raymond Hawkins, available here.
Also of note in the court's initial order in Barnes v. Zaccari is the reference to Ex Parte Young, 209 U.S. 123 (1908), in the course of dismissing Barnes' first two counts, which focused on the violation of Barnes' First Amendment right to freedom of expression by VSU, the school's Board of Regents, and school officials. Since individuals often cannot sue state entities or their agents due to the Eleventh Amendment's protection of these parties against most lawsuits, those counts were dismissed (even though the counts against school officials in their individual capacities were upheld). This does not mean that students are stuck when a school violates their rights. The court pointed out that Ex Parte Young "applies to cases in which the relief against the state official directly ends the violation of federal law." That is, if the violations of Barnes' rights were still ongoing, even the two counts that were dismissed might have survived. The point here is that students can still sue a public college for relief against rights violations so long as there is an ongoing violation of the students' constitutional rights.
See also Will Creeley's detailed explanation of the court order.