Yes, Resident Assistants Have Free Speech Rights Too

About this time last year, I put out a pair of Torch posts advising students about the importance of knowing their rights on campus and being able to protect themselves in the event their rights are violated. With the new school year around the corner, now would be a good time for both returning and incoming students to give them a read.

We occasionally get questions, however, from students in a somewhat different position—as resident assistants (RAs) in university residence halls, operating not only as students, but as employees of their universities. Do they have fewer free speech rights than other students? If so, where is the line drawn? A FIRE case at Florida Gulf Coast University (FGCU) provides some pointers here.

In summer 2010, student DJ Lintelman was heading into his third year as an RA at FGCU, having earned positive marks in both his 2009 and 2010 evaluations. But that July, Lintelman was terminated from his position. Among the reasons given by associate director of the Office of Housing and Residence Life (OHRL) Jameson Moschella were "Facebook messages" sent to another student (in which Lintelman harshly criticized the student for supporting recent student government moves to impeach members accused of smoking marijuana) and "sharing your dissatisfaction about OHRL in the presence of residents" (he had been critical of FGCU for its alleged support of the impeachments as well as his treatment after being erroneously accused of alcohol consumption on the job).

In Moschella's eyes, however, Lintelman had crossed the acceptable boundaries of free speech. As we recounted in FIRE's July 22, 2011, letter to FGCU President Wilson G. Bradshaw:

In their meeting on July 13, 2010, Moschella also told Lintelman that an RA "is expected to be an Ambassador for our department and University." Moschella added that Lintelman having stated his opinion to another student "conflicts with that very idea of [Lintelman] being an Ambassador." According to Lintelman's account of their conversation, Moschella told him that "as an employee of FGCU I had no right to speak my mind against the administration on Facebook or in a [p]ublic [f]orum whether I agreed or not" and that Moschella had "25 other alternate RA's willing to take my spot" who would keep their mouths shut.

(FGCU did not dispute Lintelman's recollection of the meeting in its response to FIRE.)

Lintelman and Moschella met again on July 21. At this meeting Moschella offered him a chance to remain an RA on a "probationary status," but only if he expressly agreed to uphold the "Ambassador" requirements. Lintelman worried, given his recent experiences, that this would restrict his right to free speech and declined. On August 3, Lintelman was terminated as an RA.

This course of events concerned FIRE. Why? Isn't it sensible for universities to expect those it appoints as RAs to serve as effective ambassadors? There is no "right," after all, to be appointed to such a position or to the benefits, including subsidized housing, that come with it. And it's certainly true that certain behaviors by RAs might get them fired from their positions even when other students can display the same behaviors with impunity.

Serving as an ambassador for the university in the execution of one's position, however, is quite different from the university asserting this kind of ownership over the student's expression at all hours, whether they are on the clock or off. As we argued in our letter to President Bradshaw:

A student employee, particularly an RA who lives in a residence hall, cannot reasonably be expected to voice the university's preferred talking points at all times. Rather, student employees must be allowed to be students and to speak on matters of public concern. This "breathing room" certainly includes Lintelman's expressions of criticism of the university for its alleged involvement in student government impeachment proceedings. If all student employees were required to be steadfast "ambassadors" of the university at all hours, as Moschella requires of RAs, FGCU would effectively prevent a significant proportion of students from criticizing anything about the university. A university ceases to be free when student employees are constantly in fear of termination-and thus losing the income many of them need in order to stay in school—merely for registering complaints about some aspect of university life.

Moschella's unreasonable expectations for RAs harm the marketplace of ideas at FGCU and prevent and inhibit students from making efforts to voice criticism that might improve student life at the university.

FIRE asked FGCU to make clear that its student employees would be free to speak their minds as students without fear of retaliation in their employment. We also requested that the termination letter be removed from Lintelman's employee file in recognition of his right to speak out as a student.

FGCU General Counsel Vee Leonard replied to FIRE on August 4, 2011 and maintained in her letter that FGCU "supports the free expression of its students." This was good. What she said next, however, was not so good. While Leonard could confirm that Lintelman's letter "is not, and never has been, a part of his official personnel file," she also stated that to remove any record of the letter in its entirety "would be inconsistent with the management of education records."

The concession that some such record did exist and that it was considered an "education record" cemented FIRE's fears of overreach. It is one thing for poor performance to lead to a student employee's termination and for that performance to be noted on his or her employee file. It is quite another, however, to fire a student employee on the basis of remarks made as a student, fully protected by the First Amendment and then to allow that termination to stand as a black mark on his or her student file. Put another way, remarks that might get a student fired as an RA at a public university may not be then used to bring a disciplinary case against the student—affecting his or her status as a student—if such expression would be protected expression otherwise. FIRE responded to Leonard on October 25, 2011, highlighting this concern. Leonard's response declared the matter essentially moot, as Lintelman had graduated, but at the same time gave further weight to our concerns by stating that the termination letter was "an education record which cannot be destroyed."

FIRE has encountered this problem elsewhere. One of the many, many unsavory aspects of the University of Delaware's coercive Residence Life program was that some of the RAs involved in implementing the program were likely threatened with dismissal if they didn't parrot the university's preferred talking points. As Adam Kissel wrote in 2008:

Faculty and RAs who stood up against the program felt the heat. For instance, a parent wrote FIRE about a conversation with her son:

He told me that RA's were "mandated" to speak out against FIRE to the media. One refused and was told by Residence Life staff that he would lose his job and the University would not consider him a student anymore. I asked him if he [the RA] would be expelled and he said that was 100% correct.

It is unclear whether the parent heard an exaggerated tale of promised retribution, but it corroborates the RA account given above and the following account posted on the Chronicle of Higher Education news blog:

I have been an RA for the past two years and have not been comfortable with this program. It has gotten out of hand and demanding of students. Yesterday [Oct. 31, 2007,] I was approached to be an advocate of the program. Several of my RA friends have been asked to be available for talking with the press. When I declined I was taken aside and told that my future as an RA was in jeopardy as was [my] future [as] a student.

I fear that universities get away with this far more than FIRE is aware, in part because RAs don't always know the line between what they may freely say as students and what may get them punished as employees, and in part because many universities are happy to blur this line. FGCU's 2012–2013 RA position description, for example, maintains the requirement that RAs "[s]erve as a student ambassador, positively representing FGCU and the OHRL at all times." One doesn't need to think too creatively to imagine how such a broad and vague requirement could chill speech. If a student RA speaks at an anti-sweatshop rally, for example, to protest the labor practices of companies FGCU contracts with, is he or she "positively representing" the university? The university might not think so, given the criticism being directed at their business practices. But isn't the courage to speak one's conscience something a university would want in those who are hired to be, on some very basic level, role models for the students in its residence halls?

This is why FIRE is seriously concerned about cases like that of DJ Lintelman. Obviously, student employees do not have carte blanche to say whatever they want, whenever they want, however they want, to whomever they want. (For that matter, neither do regular students.) But universities don't have the automatic right to sack student employees and punish them as students for deviating slightly from the party line. When a university has forgotten that principle, it has ceased to take free expression seriously.