Wichita State University must end investigation of ‘free house tours’ banner

What does it take to launch a Title IX investigation at Wichita State University? One arguably suggestive banner hung outside a window for five minutes, apparently. Today, FIRE wrote a letter to Wichita State calling upon the university to abandon a promised, and meritless, Title IX investigation into a fraternity house banner offering “house tours” to fellow students.

It’s a well-known, but not always well-loved, tradition every fall: suggestive banners tend to appear outside fraternity and apartment housing during back-to-school season, and they often elicit controversy.

On September 8, members of the Phi Delta Theta fraternity at Wichita State hung a banner offering “New Members Free House Tours!” outside their window after the beginning of sorority recruitment at Wichita State’s campus. That was the entirety of the message. According to the university’s student newspaper, The Sunflower, the banner was up for only about five minutes before Phi Delta Theta leadership learned about it and removed it. Despite the banner’s short life, Wichita State determined that it may have violated multiple policies, including the university’s Title IX policy:

The incident — reported to student conduct by a student Friday afternoon — is being reviewed to determine if a further investigation is warranted, Mandy Hambleton, assistant vice president for student advocacy, intervention and accountability, said.

Hambleton said the incident is being investigated as a potential conduct violation as well as a potential Title IX violation.

[ … ]

Hambleton said right now more information and context is needed to move forward.

“Right now I just basically have a picture,” Hambleton said.

An internal fraternity investigation, conducted by officers within the chapter, led to the immediate suspension of two chapter members.

Likewise, Wichita State’s Division of Student Affairs confirmed on Twitter that the “inappropriate banner” was under investigation.

The Sunflower also reports that vice president of student affairs Teri Hall cited Education Secretary Betsy DeVos’ announcement of the department’s plan to rescind the previous administration’s controversial “Dear Colleague” letter on campus sexual misconduct as a possible factor in the investigation:

Teri Hall, vice president of student affairs, said with recruitment starting Thursday night, the incident brought “a chilly climate to campus.” Hall said while the banner was “absolutely inappropriate,” the timing escalated the incident, both with recruitment beginning and with the apparent rollback of Title IX by Secretary of Education Betsy DeVos.

“I think we’re all a little more sensitive because of the statements Betsy DeVos made (Thursday),” Hall said.

Today, FIRE sent a letter to Wichita State president John Bardo demanding that the university drop its investigation and reaffirm its commitments to student rights and the First Amendment. FIRE explained that Wichita State’s claim that the banner constitutes sexual harassment is faulty, at best:

Even assuming that the banner was in fact intended to be sexual in nature, it would still not constitute sexual harassment, as it was not so “severe, pervasive, and objectively offensive” that it deprived any WSU students of access to an educational opportunity or benefit. Indeed, according to WSU itself, the banner was only visible for five minutes. Such a fleeting occurrence, combined with the fact that the banner’s relation to sex was tenuous at best, simply cannot reasonably be said to have impacted any student’s ability to fully participate in campus life. Equally troubling and unacceptable is Hall’s comment in relation to this incident that the campus community is more sensitive because of perceptions about Betsy DeVos’ Title IX enforcement plans. To be clear: such subjective heightened sensitivity is not a license to violate established law.

The letter then went on to warn that investigations — even those that do not end in punishment — can violate students’ free speech rights:

We also remind WSU that an investigation of constitutionally protected speech can itself violate the First Amendment. “Generally speaking, government action which chills constitutionally protected speech or expression contravenes the First Amendment.” Bruner v. Baker, 506 F.3d 1021, 1029 (10th Cir. 2007) (citing Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996)). Accordingly, several appellate courts have held that government investigations into protected expression violate the First Amendment. See White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (holding that a government investigation into clearly protected expression chilled speech and therefore violated the First Amendment); Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) (upholding a trial court’s finding that a university president’s creation of a committee to investigate protected speech by a professor unconstitutionally chilled protected expression because it implied the possibility of disciplinary action); Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir. 1988) (“an investigation conducted in retaliation for comments protected by the first amendment could be actionable . . . .”). WSU’s investigation sends a message to all students that if their expression offends others, they will be subject to disciplinary investigation. As a result, students will likely refrain from speaking rather than risk discipline. Such a result is the very definition of the impermissible “chilling” of speech.

Administrators at public universities cannot cleanse campuses of speech they find offensive, and those who support granting them that power may soon discover that it extends to more than just offensive banners. The ability to regulate sexually suggestive speech grants authorities enormous power over student speech, be it political, self-affirmative, or crude. Instead, universities should encourage students to respond to classmates’ speech they dislike with their own.

Earlier this year, FIRE wrote to Wichita State to demand that the student government reverse its viewpoint-based discrimination against a prospective student group — prompting the student government’s Supreme Court to overturn the unconstitutional decision.

We’re again calling on Wichita State to remember its obligations to the First Amendment. While it’s laughable that this banner was even considered an appropriate subject of a Title IX investigation in the first place, Wichita State can remedy the situation by abandoning its investigation immediately. We’ll be watching.