Don’t expect Regis University to live up to its free speech promises

If you attend Regis University or are considering applying, be warned: Regis University leads students to believe their free speech rights are protected, and then investigates students for exercising those rights.

Such is the case for student Alexander Beck, who is now under investigation for “harassment” and “discrimination” for expression protected by the First Amendment, which he also believed would be protected at Regis, a private school that promises its students free speech rights.

A new letter from FIRE — the third FIRE has sent to Regis in three months about Beck’s “Social Justice Bake Sale” — asks Regis to ends its practice of investigating and censoring student speech, or admit to the campus community that Regis’ free speech promises are false and let students decide if they truly want to attend a university that does not actually offer the free speech protections they were promised.

Beck’s bake sale, which offered different prices for baked goods depending on students’ gender, race, sexuality, or religion, and invited students to discuss the prices if they disagreed with them, has been a source of contention at Regis for months. Similar bake sales have caused controversy at campuses across the country. Beck received permission for the event from Regis’ event coordinator and set up the table on March 16 as a form of protest against Regis’ “Social Justice Week” programming. The bake sale didn’t last long.

According to Beck, Dean of Students Diane McSheehy approached the table after less than an hour and claimed that, because Beck stated his event was being held in protest of Regis’ Social Justice Week, the table constituted a “demonstration,” and that Beck had not followed the school’s demonstration guidelines.

On March 22, FIRE wrote to Regis President John P. Fitzgibbons, explaining that universities touting “academic traditions of honesty, freedom of expression and open inquiry” cannot just shut down expression that could make students or administrators uncomfortable by claiming that it requires special permission. We hoped that would be the end of the story.

It was not.

Rather than admitting that censoring Beck’s bake sale was a mistake, Fitzgibbons made public statements alleging that the bake sale constituted a “crystal clear” violation of federal law and bragged that administrators “took care of [the bake sale] as soon as it was noticed” and “got on it when we understood that’s what was going on.”

FIRE sent a second letter on April 17, explaining that “[c]ategorizing the bake sale as a violation of federal law ignores or willfully misinterprets the expressive purpose of the event.” The bake sale — while potentially offensive to some or even many members of the campus community — was ultimately an act of satirical speech meant to make a statement about Regis’ “Social Justice Week.” Again, FIRE hoped this would be the end of the story.

By this point, you may have begun to suspect that this would not, in fact, be the end of the story. On May 2, Equal Opportunity & Title IX Compliance Coordinator Michelle Spradling issued Beck a notice informing him that he was under investigation for alleged violations of Regis’ “Nondiscrimination and Sexual Misconduct” policy:

We received a report that you may have violated the Regis University Nondiscrimination and Sexual Misconduct policy (“Policy”), particularly the definition of “discrimination” and “harassment.”

Specifically, it is alleged that you:

• Sold baked goods on Regis University property at distinct, preferential and detrimental prices based upon an individual’s gender, race, religion and sexual orientation on March 16, 2017.

• Made discriminatory comments to students, including: “white people are smarter than black people,” and “black people commit more crimes than white people,” on March 16, 2017.

As FIRE pointed out in our April letter, protests like Beck’s “Social Justice” bake sale and feminist “wage gap” bake sales, both of which utilize proposed transactions to highlight perceived flaws in society or policy, often use satire to provoke and, sometimes, offend. Universities that commit to honor students’ right to expression should not launch investigations once the expression students engage in — and believe to be protected — offends.

And Regis could no more reasonably investigate or punish Beck’s alleged statements that “white people are smarter than black people” and “black people commit more crimes than white people.” These comments, like the bake sale, do not constitute actionable harassment on their own.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court set forth the controlling legal standard for student-on-student harassment in the educational setting. In order for student conduct (including expression) to constitute actionable harassment, it must be (1) unwelcome, (2) discriminatory on the basis of gender or another protected status, and (3) “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.” This standard is what students would reasonably expect a university like Regis — which has committed itself to protecting students’ rights — to adhere to in determining whether speech is protected or unprotected, regardless of how offensive it may be to some members of the campus community.

While Regis is a private university, and thus not legally bound by the First Amendment, it is both morally and contractually bound to honor the free speech promises it makes to students. However, a May 5 letter to FIRE from Vice President and General Counsel Erika Hollis suggests that Regis does not believe its treatment of Beck contradicts the free speech values professed by the university:

Regis University is a private Jesuit, Catholic University. Accordingly, the University is not subject [to] the [F]irst [A]mendment protections you cite in your letter. Rather each student, electing to attend Regis University, agrees to abide by the University Standard of Conduct.

The Standard of Conduct includes embracing and honoring the traditions of honesty, freedom of expression and open inquiry. Students are also required to abide by the university’s rules related to becoming a recognized student organization[], holding protests and tabling events.

In addition, the Standard of Conduct, expects each student to tolerate and respect the different backgrounds, religious traditions, personalities and beliefs of the students, faculty and staff that make up the Regis community. Similarly, the university prohibits any Regis University community member, including students, from discriminating on the basis of race, color, national origin, sex, disability, age, religion, veteran status, marital status, pregnancy, parental status, gender identity, sexual orientation, genetic information or any other legally protected status.

In sum, Regis University students are welcome to engage in freedom of expression so long as they follow the University’s rules.

Got that, Regis students? You have free speech. Until administrators decide you don’t.

As we explained in our most recent letter, Regis needs to truly commit itself to the promises it makes to students, or admit those promises are false:

[F]reedom of expression is something students either do or do not possess— there is no in-between. Your actions with regards to Beck suggest the latter: that Regis University intends to allow students to express themselves only when Regis approves of their speech. This betrays a fundamental—and perhaps intentional—misunderstanding of freedom of expression. If Regis intends to investigate and punish students for offensive speech, we ask Regis to notify the campus community, amend its handbooks, and let students decide if they truly want to attend a school that does not offer the free speech protections they were promised.

It’s time for Regis to decide what kind of university it wants to be. Will Regis live up to its “academic traditions of honesty, freedom of expression and open inquiry”? Or will it admit to abandoning the promises it makes and punish students for expression they have every reason to believe will be protected?

We’ll be watching.