Student Critic of University of North Carolina’s Sexual Misconduct Procedures Faces Discipline under Speech Code

Controversy has engulfed the University of North Carolina at Chapel Hill (UNC) this week as student Landen Gambill has been charged with violating one of the institution's speech codes for publicly criticizing the university's handling of her allegations of sexual assault against a fellow student. As reported by Jezebel, Inside Higher Ed, and The Huffington Post, Gambill faces a range of disciplinary outcomes, including the possibility of expulsion, for criticizing UNC's response after she reported to administrators that she had been raped.

Inside Higher Ed's Allie Grasgreen writes:

Gambill has spoken about the assault in different media outlets, but she's never publicly identified the perpetrator by name. And last month, half a year after the University of North Carolina's student-run Honor Court determined her case lacked sufficient evidence to punish her former boyfriend - who Gambill and others said repeatedly abused her verbally and sexually - she, along with 64 other survivors and a former dean of students, filed a complaint with the U.S. Education Department over UNC's handling of Gambill's case and others.

Even in the instances where Gambill did speak out, the things she said focused on the Honor Court hearings, not on her actual assailant or assaults. Gambill says that in her student conduct hearing, she was asked inappropriate (and not uncommon) victim-blaming questions. One student asked her, she says, "‘Landen, as a woman, I know that if that had happened to me, I would've broken up with him the first time it happened. Will you explain to me why you didn't?'" She also said the Honor Court disclosed the assault and complaint to her parents without permission.

Jezebel reports that Gambill was notified of the possibility of charges against her for violating university policy on January 29, 10 days after it was publicly reported that Gambill and others had submitted their complaint to the Department of Education's Office for Civil Rights regarding UNC's sexual misconduct procedures and practices. The letter from Elizabeth Ireland, who serves as the Graduate & Professional Schools Student Attorney General for UNC's student-run Honor Court, informed Gambill that a report alleging a possible Honor Code violation had been filed.

Jezebel further reports that Ireland contacted Gambill again this past Friday, stating that sufficient evidence had been found for the allegation against her to be referred to the Honor Court for adjudication. Ireland's letter to Gambill stated:

Accordingly, you are being charged with the following Honor Code violation(s):

II.C.1.c. - Disruptive or intimidating behavior that willfully abuses, disparages, or otherwise interferes with another (other than on the basis of protected classifications identified and addressed in the University's Policy on Prohibited Harassment and Discrimination) so as to adversely affect their academic pursuits, opportunities for University employment, participation in University-sponsored extracurricular activities, or opportunities to benefit from other aspects of University Life.

This decision was reached because the evidence provides a reasonable basis to believe that a violation of the Honor Code may have occurred.  Please note that being charged with a violation does not imply guilt.  It simply means that sufficient evidence of a possible violation exists to warrant a hearing before the Undergraduate Honor Court.

Gambill announced the formal charge against her on her Facebook account over the weekend.

Following the national media attention, UNC issued a statement on its website yesterday. Citing the federal Family Educational Rights and Privacy Act (FERPA), UNC declined to comment on the specifics of the charge against Gambill, noting instead that the Honor Court is a student-run process that operates independently of university oversight, that the Honor Court no longer handles allegations of sexual misconduct, and that UNC is in the process of revising its policies regarding sexual misconduct.

The charge against Gambill presents startling new evidence of the oppressive danger of speech codes. Based on the information thus far publicly available, Gambill now faces university discipline—indeed, possible expulsion—for publicly criticizing university procedure and practice. This is a shockingly unacceptable result at a public institution like UNC, which is legally and morally bound to honor and protect the First Amendment rights of students like Gambill.

FIRE rates UNC's "Conduct Affecting Persons" policy—the policy Gambill has been accused of violating—a "yellow light" speech code, meaning that the ambiguity of the policy as written encourages administrative abuse and arbitrary application and allows the policy to be marshaled against protected speech. Unfortunately, the inherent threat to student speech rights presented by the policy seems to have materialized here.

The policy's ban on "disruptive or intimidating behavior that willfully abuses, disparages, or otherwise interferes with another" in a manner that affects a fellow student's ability to obtain university benefits is broad, vague, and hopelessly subjective.

The policy was presumably intended to serve as an anti-harassment measure but fatally lacks the "reasonable person" requirement built into the peer-on-peer harassment standard announced by the Supreme Court of the United States in the landmark 1999 case Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). In Davis, the Court provided a precise definition of discriminatory harassment in the educational context: Conduct becomes harassment when it is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." By ignoring Davis' "objectively offensive" prong, UNC's speech code fails to replicate the exacting balance between protected expression and unprotected harassment struck by the Davis standard, instead allowing the most unreasonable student's subjective determination of what is and is not "disruptive" or "intimidating" to set the rule for speech on campus. And by disregarding Davis' requirement that the conduct in question be sufficiently "severe" and "pervasive" to prevent a student from participating in the life of the university, UNC further invites the punishment of protected expression.

Depressingly, UNC's policy also ignores relevant Supreme Court precedent with regard to "intimidation," failing to define the term whatsoever. In Virginia v. Black, 538 U.S. 343, 359–60 (2003), the Supreme Court held that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." As FIRE has pointed out to public universities for years, unless student conduct rises to this level, it cannot be sanctioned as "intimidation."

So UNC's policy is constitutionally flawed as written, allowing for the punishment of protected student speech—and if the information publicly available thus far is accurate and complete, this is precisely what has happened in Gambill's case. To be clear, Gambill's criticism of UNC in comments to student newspaper The Daily Tar Heel and in the OCR complaint constitutes protected speech. Any punishment she may face solely as a result of this speech violates the First Amendment, and if the charge against her relies on this public criticism alone, it must be dismissed immediately.