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Beware the rolling tide of constitutional violations on campus

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The University of Alabama was rocked on Martin Luther King, Jr. Day this year when Instagram videos surfaced of UA student Harley Barber unleashing a torrent of racial slurs. Predictably, the internet erupted with shock (or lack thereof) and calls for Barber’s expulsion.

UA quickly denounced the videos and announced that the incident had been referred to the Office of Student Conduct:

If this is starting to sound familiar, it should. In 2015, several colleges and universities were scandalized by incidents of racist speech and decided to violate students’ rights in response to negative publicity.

And indeed, UA appears to have taken a page right out of University of Oklahoma president David Boren’s playbook, after he expelled students for leading a racist chant on a bus.

Several media outlets are now reporting that Barber has been expelled from the university because of the videos. Yesterday, UA President Stuart Bell issued a statement confirming that Barber is no longer enrolled at the university and declaring that expression such as hers is “unacceptable and unwelcome” at the university:

And so it appears that public outrage, or at least the internet version of it, has won the day. But was it right? FIRE has serious concerns.

It is unclear what process was was afforded Barber prior to her expulsion, but it is doubtful that a period of two days would have been sufficient to accord her the constitutional minimum of due process to which she was entitled. As we explain in our Guide to Due Process and Campus Justice, students at public universities facing expulsion have a right to notice of the charges against them and an opportunity to contest those charges. Could Barber have agreed to an expedited disposition? Certainly. But it remains uncertain whether that occurred, or whether this is simply Oklahoma redux.

More glaring is the fact that Barber appears to have been expelled for speech that is protected by the First Amendment at a public university.

That a public university may not discipline a student for engaging in protected expression is settled law. In fact, the Supreme Court held as much more than four decades ago in Papish v. Board of Curators of the University of Missouri (1973):

This case was decided several days before we handed down Healy v. James, 408 U. S. 169 (1972), in which, while recognizing a state university's undoubted prerogative to enforce reasonable rules governing student conduct, we reaffirmed that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Id., at 180. See Tinker v. Des Moines Independent School District, 393 U. S. 503 (1969). We think Healy makes it clear that the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of “conventions of decency.”

And it’s hard to believe that this also needs repeating after decades of legal precedent, but the First Amendment protects even speech that some, many, or even all, find hateful. The Supreme Court reiterated this fundamental principle in Snyder v. Phelps (2011), proclaiming:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. . . . [W]e cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Last year, the Court again reaffirmed this principle in Matal v. Tam (2017), holding unanimously that the perception that expression is “hateful” or that it “demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground” is not a sufficient basis on which to remove speech from the protection of the First Amendment.

If hateful speech also falls under a category of unprotected speech — such as true threats or incitement to imminent lawless action — it will lose its constitutional protection. But Barber’s widely publicized expression did not constitute either of those things.

Nor does Barber’s expression, as some will argue, constitute actionable discriminatory harassment.

Barber is (or was) a student. And unlike a faculty member or administrator, students don’t usually have the kind of power over other students that makes quid pro quo harassment (rather than just hostility or unpleasantness) possible. In order for student behavior to constitute actionable “hostile environment” harassment under the applicable legal standard provided by the Supreme Court in Davis v. Monroe County Board of Education (1999), it must be unwelcome, discriminatory on the basis of gender or another protected status, and “so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to the educational opportunities or benefits provided by the school.” By definition, this includes only extreme and usually repetitive behavior — conduct so serious that it would prevent a reasonable person from receiving his or her education. In a July 28, 2003, “Dear Colleague” letter sent to all college and university presidents, the Office for Civil Rights of the U.S. Department of Education, which is tasked with enforcing anti-discrimination law, made clear that harassment “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

To be sure, many are certainly outraged and offended by Barber’s speech. But any argument that Barber’s expression deprives UA students of access to the university’s educational opportunities or benefits collapses under its own weight. Members of the LGBTQ community may find opposition to same-sex marriage hateful. Others may be offended by statements attacking “whiteness.” Accusations of hatefulness litter the debate surrounding the Israeli-Palestinian conflict. Is the expression of, or mere knowledge that someone harbors, those beliefs sufficient to remove their statements from the First Amendment’s protection? Clearly not. Otherwise, both sides of all debates would soon find themselves silenced — and that’s not an outcome anyone should desire.

We should all be wary about punishing speech that offends us for fear of ourselves being censored. But we should also remember that there is inherent value in knowing our surroundings. As FIRE Executive Director Robert Shibley explained in USA Today after the Oklahoma incident, refraining from punishing or censoring speech that many find highly offensive ultimately allows us to be more effective in the fight against racism:

Free speech has many benefits, but one of the most overlooked is its ability to warn us of truths about the world — especially when we’d rather not hear them. Doesn’t the video tell us something we need to know about the racial attitudes of at least some OU students?

Expelling Harley Barber for her speech, offensive as many found it, violates the First Amendment. And even if she is disinclined to fight this egregious constitutional violation, one violation of rights begets another. The UA administration should be held accountable lest it be emboldened to continue on this course, as it was undoubtedly emboldened by David Boren’s summary expulsion of the OU SAE members.

And so, to conclude, there is a message here for various parties.

To administrators: Heed the words of Slate Chief Correspondent Political Jamelle Bouie, who disagreed with Boren’s expulsions. Don’t expel students, educate them: “Give them a chance to see what their words actually mean, and whether they want to be the kinds of people [who say such things].”

But if appealing to your role as educators doesn’t do the trick, allow me to appeal to your sense of pragmatism.

Negative publicity regarding the actions of one of your students may be frustrating, but violating the constitutional rights of your students will not solve the problem. At best, you throw fuel on the fire, ensuring that on top of any other issue, your disregard for the law is discussed across the nation for all to see.

At worst, your chickens will come home to roost. The day will come when someone is genuinely offended by some speech that the vast majority will find unobjectionable — for instance, vehement condemnation of female genital mutilation as a religious tradition — and demand that you punish the speaker. By the standards you have now set, what principled reason for refusing those demands will you be able to give?

Further, you may have fooled yourselves into thinking that students who engage in egregiously offensive speech will always prefer to apologize and remove themselves from the spotlight rather than fight back to vindicate their rights. But sooner or later, you will encounter a student who is willing to stand up — if not for their actions, then for First Amendment principles. And when that day does come, it will cost you. The law of the First Amendment is well-established, and those court judgments will likely be against you, personally.

To students: Be vigilant, and speak out against violation of constitutional rights on your campus. Not only when it’s your own rights, or the rights of someone you agree with, on the line, but also when you see the rights of those you might disagree with most passionately being infringed upon. History shows that censorship is never an isolated incident. Once the power to censor is established, it will be used against any speech found to be inconvenient to those who wield it. Which, brings me to a final, related message.

To those celebrating Barber’s expulsion: Be careful what you wish for. The same instinct that led the UA administration to expel Barber, also led Essex County College to fire a professor who defended a Black Lives Matter event, and to the attack on Texas State University’s student newspaper and editors over an editorial critiquing the social construct of race and “whiteness,” and provided cover for Winthrop University when it threatened a student for protesting the legacy of a governor whose time in office saw an increase in lynchings. If you think the expression you agree with is safe from the reaches of censors because it is widely accepted, you are mistaken.

As always, any student faced with a violation of their rights on campus should seek help from FIRE.

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