More Questions than Answers in Orange Coast College Recording Scandal [UPDATED]

Update (Feb. 24, 2017): Orange Coast College agreed yesterday to lift student Caleb O'Neil's suspension and will not punish professor Olga Perez Stable Cox, the Los Angeles Times reports.

Today, we’re taking a close look at a story out of Orange Coast College (OCC) in California, where a student has been suspended by the college—and ordered to apologize—for recording a professor’s in-class rant in which she referred to President Donald Trump’s election as an “act of terrorism” and said the nation had been “assaulted.” The professor also noted that the hardest thing for her was knowing that “the people who made the assault were among us.”

As it turns out, Professor Olga Perez Stable Cox’s class included at least one of those “assailants,” who recorded her November 2016 comments and posted them on Facebook. The video went viral, Professor Cox received numerous threats, and, ultimately, the student who took the video was identified and disciplined last week under a California regulation that prohibits “[t]he use by any person, including a student, of any electronic listening or recording device in any classroom without the prior consent of the instructor.”

A closer look at this story reveals a lot of different issues to unpack. But one thing is for certain: almost everyone involved in this debacle has behaved poorly in one way or another, in ways that threaten the atmosphere of free speech and open debate that should characterize a college or university campus.

Let’s start at the beginning, with the professor and the student who recorded her. FIRE believes there must be a reasonable amount of breathing room for professors to talk about topics in class that are unrelated to the class. For instance, we defended one professor who ultimately lost her job because of a single ten-minute tirade against the Iraq War, while the war was still ongoing, in her creative writing class. However, it is reasonable that students who voted for Trump might worry that a professor who labels Trump voters as “assailants” could have trouble treating them fairly if they are open about their conservative views. And one reasonable response to such concerns might be to try, as the student who made the recording did, to bring attention to the issue.

Now we come to Caleb O’Neil, the student who recorded Professor Cox without her consent. There are strong arguments to be made that the recording statute may violate the First Amendment, at least as applied to him. For example, if a person’s recording were deemed an act of whistleblowing, prohibiting that could pose constitutional questions. Analyzing the constitutionality of the statute requires grappling with the tension between the values of transparency, open government, and the the possibility that classroom recordings could create a significant chilling effect on classroom discussions. But for the sake of argument, if the statute is constitutional, OCC would have a right to impose some consequences for its violation.

This does not mean, of course, that any and all consequences are appropriate—which brings us to the actions of the OCC administration. According to documents published by Campus Reform, OCC suspended O’Neil for a semester for making the recording. And as a condition of his re-entry, he must, among other things, issue a written apology to Professor Cox.

As far as the suspension is concerned, it strikes me as a disproportionately harsh punishment for what O’Neil did. I would very much like to know, for example, if other students who have violated this policy under less politicized circumstances have received similar punishment.

With regard to the forced apology, that is pretty clearly a violation of O’Neil’s First Amendment rights. As FIRE President and CEO Greg Lukianoff has explained,

The U.S. Supreme Court has long since recognized that, while free societies must not tell their citizens what opinions they may not have, it is even less compatible with freedom to tell citizens what they must say. Administrators who doubt that should check out West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) and Wooley v. Maynard, 430 U.S. 705 (1976). If the state cannot require students to recite the pledge of allegiance in a time of war or, even, require a New Hampshire resident to have a “Live Free or Die” license plate motto, it certainly can’t require a student to confess remorse against his or her will. In other words, at public schools: force an apology, risk a lawsuit (and deservedly so).

So far we have covered the actions of the professor, the student, and the OCC administration—but there is still more.

In December, a lawyer representing the OCC College Republicans filed a formal complaint with the college against Professor Cox, requesting that the college take action against the professor for supposed “hate speech and bullying tactics.” This is disappointing. As I mentioned before, it is reasonable to conclude that the professor crossed a line that left her students with legitimate concerns about how she might evaluate them—particularly if, as has been reported, she said that she would “no longer tolerate” anyone who voted for Trump. Colleges are entitled to require objectivity from their faculty and staff when it comes to teaching duties, and while they must be exceedingly careful to respect free speech rights in enforcing that requirement, there may be rare occasions when intervention is warranted.

But “hate speech?” “Bullying?” Those are amorphous terms that are not legally defined categories of unprotected speech, and Professor Cox clearly did not threaten or harass anyone in a way that would strip her speech of First Amendment protection. And it is deeply disheartening to see students seize upon the short-sighted plan of weaponizing the same anti-free-speech arguments that have been used to silence them in the past.

So where does this leave us? Well, the only two things we can probably say with some certainty are that Caleb O’Neil violated the recording statute by taping Cox’s rant, and that OCC—while within its rights to levy some punishment if the recording statute is constitutional—is violating O’Neil’s First Amendment rights by requiring him to apologize for it. Everything else is fodder for further discussion—but given the importance of free speech and open debate at our nation’s colleges and universities, it’s a discussion we ought to be having.