Tag: Campus Free Speech

The article is here; the Introduction:

The United States is in a difficult moment: what basic faith there was in the institutions of democracy has been eroded, constitutional protections have been undermined by the Supreme Court’s radical right-wing majority, and reason is no barrier against the libidinal release enabled by former president Donald Trump. In the wild proliferation of paranoia, accusation, retribution, and hate speech that flourishes on the internet and translates into dangerous, sometimes lethal activism in “real life,” education in general and the university in particular have been singled out for attack.

The attack on education is itself not new—right-wing think tanks and politicians have been at it for decades. But this moment seems somehow more dangerous, as Republican lawmakers and militant activists use their power to send censors directly into classrooms and libraries, promising conservative parents they will regain control of their children against the specter of “woke” indoctrination.

In one of those inversions of meaning so adroitly practiced by the right, censorship is being enacted in the name of free speech and/or academic freedom. The terms themselves seem to have lost their purchase: once weapons of the weak, they now have been seized as legal instruments by the powerful, who censor what they take to be unacceptable criticism—of state policy, of inequality, of injustice—in the name of freedom.

And, perhaps most hypocritical of all, the censors claim they are ridding the university of “politics.” Heightened politicization, in the name of the purging of “politics,” is the stunning result. The two are not the same. Politics (as I want to use the term) refers to contests about meaning and power in which outcomes are not predetermined; those who politicize—or, better, rely on partisanship—know in advance the outcomes they want to impose, the enemies they want to defeat. In theory, politics is at the heart of the free inquiry associated with democratic education, partisanship is its antithesis. In fact, the relationship between the two is never as simple as that opposition suggests.

The line between politics and partisanship has been difficult to maintain, if not impossible, as demonstrated by more than a century of cases investigated by the American Association of University Professors (AAUP). Critical scholarship that challenged the interests of businessmen and/or politicians, however rigorous and disciplined, inevitably met the (partisan) charge that it was unacceptably “political”; its proponents were often fired as a result. In the course of its long history, the AAUP has sought to strengthen the boundary between politics and partisanship with conceptual and practical tools: disciplinary certification of the “competence” of scholars; insistence on the objectivity or neutrality of “scientific” work; tenure; faculty governance; “responsibility”; and the designation of “extramural speech” as warranting the protection of academic freedom.

There is now a rich body of material (statements of principles, guides to good practice, reports) that serves to codify the meaning of that freedom, periodically updated in the Association’s Red Book. It provides important ammunition for the struggle to protect democratic education from its censors, even as the need to constantly refine and update the protocols suggests the ongoing (seemingly eternal) nature of the struggle.

Despite changing historical contexts, the line between politics and partisanship has never been secured. That is because it constitutes a tension inherent in knowledge production that cannot be resolved either by legislation, administrative fiat, or academic punditry. Academic freedom mediates the tension, but does not resolve it because when knowledge production is critical of prevailing norms (whether in the sciences, social sciences, or humanities), it incurs the wrath of partisans of those norms, who seek to defend their integrity and their truth. The tension between politics and partisanship is the state (or the fate) of democratic higher education in America, a state of uncertainty (political theorist Claude Lefort associates uncertainty with democracy), that requires the kind of ongoing critical engagement—interpretative nuance, attention to complexity, philosophical reflection, openness to change—that ought to be the aim of any university education.

As I’ve noted before, public universities have considerable authority to impose content-neutral rules on demonstrations, for instance prohibiting overnight campouts, restricting sound amplification, and so on. But of course the First Amendment requires such rules to be content-neutral (or, in “limited public forums” on campuses, at least viewpoint-neutral). And even content-neutral restrictions in outdoor quads, at least as to student gatherings, still have to be reasonable (to oversimplify the rules slightly).

Beyond that, a 2019 Texas statute reinforces this, and indeed provides even broader protection than the First Amendment minimum. In particular, it treats “outdoor areas of the institution’s campus” as tantamount to “traditional public forums,” open to all members of the public. This designation also precludes content-based restrictions. (Some public universities might be able to argue that such outdoor spaces are only “limited public forums,” where content-based but viewpoint-neutral restrictions are allowed; not so in Texas.) And it provides that restrictions must be “narrowly tailored to serve a significant institutional interest” and must “leave open ample alternative channels.” (Again, if a university could treat an outdoor space as a “limited public forum,” restrictions would only need to be reasonable; but in Texas the bar is higher.) And the statute “recogniz[es] freedom of speech and assembly as central to the mission of institutions of higher education.

This makes me pretty skeptical about the dispersing of protesters at UT. First, Governor Abbott’s statements suggest that this happened because the protesters’ speech was anti-Semitic; but that’s a viewpoint-based basis for restriction, not a content- and viewpoint-neutral one. (The Governor appears to have been involved in the police actions here.) Second, from the press accounts that I had seen the protesters appear to not have been engaged in sleepouts, blockages, or other things that violated campus rules; and to the extent that they didn’t have a permit, there seemed to have been no “clear, published, content-neutral, and viewpoint-neutral criteria” (to quote the Texas statute) justifying any denial of a permit.

The Foundation for Individual Rights and Expression, whose work I generally trust in this area, takes a similar view in a letter it released Thursday:

FIRE is deeply concerned by the University of Texas at Austin’s outrageous and unnecessary use of riot police yesterday afternoon to forcibly disperse students and faculty engaged in a peaceful Gaza solidarity walk-out on campus, taking journalists covering the event with them. UT Austin, at the direction of Governor Greg Abbott, appears to have preemptively banned peaceful pro-Palestinian protesters due solely to their views rather than for any actionable misconduct. {The recitation here reflects our understanding of the pertinent facts based on public information. We appreciate that you may have additional information and invite you to share it with us.} UT Austin’s inexcusable actions violate its binding First Amendment obligations as a public university, as well as its obligations under state law to keep all open, outdoor areas of public campuses free for all constitutionally-protected protest. UT Austin must ensure all criminal trespassing charges against peaceful protesters are dropped, if not already dismissed, and forgo further pursuit of institutional or criminal punishment.

On Tuesday, April 23, the Palestinian Solidarity Committee of Austin announced a “Popular University for Gaza” walk-out planned for the following day, followed by an afternoon schedule that included teach-ins, study breaks, pizza, and an art workshop. {The post read in part: “In the footsteps of our comrades at Columbia SJP, Rutgers-New Brunswick, Yale, and countless others across the nation, we will be establishing THE POPULAR UNIVERSITY FOR GAZA and demanding our administration divest from death. We will be occupying the space throughout the entire day, so be sure to bring blankets, food and water, face masks, and lots of energy.”} That evening, the UT Austin sent PSC a letter informing the group the university would not permit Wednesday’s walk-out to move forward due to its “declared intent to violate our policies and rules, and disrupt our campus operations.” As evidence of disruptive intent, the letter cited the group’s April 21 Instagram post, which included the line: “In the footsteps of our comrades at Rutgers- New Brunswick SJP, Tufts SJP, and Columbia SJP, we will take back our university and force our administration to divest, for the people of Gaza!” The letter also noted the group’s encouragement for protesters to bring face masks and further stated:

The University of Texas at Austin will not allow this campus to be “taken” and protesters to derail our mission in ways that groups affiliated with your national organization have accomplished elsewhere.

Please be advised that you are not permitted to hold your event on the University campus. Any attempt to do so will subject your organization and its attending members to discipline including suspension under the Institutional Rules. Individuals not affiliated with the University and attempting to attend this event will be directed to leave campus. Refusal to comply may result in arrest.

On Wednesday, students and faculty gathering for the walk-out encountered a large law enforcement presence, including UT police and Texas Department of Public Safety (DPS) troopers called in “at the request of the University and at the direction of Texas Governor Greg Abbott, in order to prevent any unlawful assembly and to support UT Police in maintaining the peace by arresting anyone engaging in any sort of criminal activity, including criminal trespass.” The officers ordered those present to disperse, ultimately arresting more than 50 protesters and at least one journalist covering the event.

As the officers responded to the protest on campus, Abbott posted the following on social media:

Arrests being made right now & will continue until the crowd disperses.

These protesters belong in jail.

Antisemitism will not be tolerated in Texas. Period.

Students joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled.

That evening, you sent a campus-wide letter saying that “protesters tried to deliver on their stated intent to occupy campus … and many ignored University officials’ continual pleas for restraint and to immediately disperse.”

This response comes on the heels of a March 27 Executive Order Governor Abbott issued instructing Texas state colleges and universities to review and update their speech policies to “address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion.” The Order also identified SPC by name as a group schools should discipline for violation of the policies.

UT Austin’s disproportionate response to a seemingly peaceful protest, on expressly viewpoint-based grounds, raises serious constitutional concerns. As a public institution, any university restriction on student expression must comport with the First Amendment’s “bedrock principle” of viewpoint neutrality. The university may establish and enforce reasonable restrictions on the time, place, and manner of speech or expressive activity, but its rules must be viewpoint- and content-neutral, narrowly tailored to serve a significant government interest, leave open ample alternative channels for communication, and—perhaps most importantly—not selectively enforced based on a speaker’s viewpoint.

These foundational free speech principles are also enshrined in Texas state law, as well as in UT Austin policy. Texas law is clear: Outdoor common areas on state university campuses are traditional public forums open for “any person to engage in expressive activities in those areas of the institution’s campus freely[.]” Students, faculty, and members of the public therefore have the right to peacefully protest at UT Austin without regard to the views they wish to express. And the university must protect their right to peacefully protest by using “other, less restrictive means” than shutting down the rally even when protesters are met with violence or disruption from those who disagree with their message.

Instead, it appears UT Austin based its response on objections to the protesters’ expressed support for Gaza and not any planned—or actual—violation of university policy or applicable law. The protestors gathered in an outdoor common area of campus traditionally open to public expression. Planned events included study breaks and ended with an art workshop, which are hardly intrinsically disruptive or violent activities—despite UT Austin’s attempts to frame the plans as such, and as violative of university policy. Those plans stand at odds with Gov. Abbott’s statement during the protest that participants in “hate-filled, antisemitic protests” should be jailed and expelled, his direction of DPS troopers to campus, and last month’s Executive Order specifically targeting anti-Semitism, which along with UT Austin’s actions paint a clear picture of state actors executing a multi-pronged campaign to censor disfavored views.

UT Austin’s view that PSC’s call to “take back our university and force our administration to divest” belies [likely should be “evidences” -EV] disruptive intent is speculative and unsubstantiated, as is your accusation that protesters “tried to deliver on their stated intent to occupy campus.” The Supreme Court affirmed more than 50 years ago that such figurative statements cannot be punished as intending violence. A peaceful protest in an area of a state university that is open to public expression is not unlawful “occupation”—protesters cannot unlawfully occupy a space by engaging in expressive activity they have every right to pursue in a space in which they have every right to be.

Simply put, yesterday’s show of force in response to a peaceful gathering and the dozens of arrests of peaceful protesters, and at least one journalist, make clear UT Austin has abdicated its constitutional and state-mandated obligations to protect expressive rights on its campus.

To correct course, UT Austin must urgently ensure all criminal charges against peaceful protesters are dropped, if they have not already been dismissed, and cease any further pursuit of disciplinary sanctions against peaceful protesters. The university must immediately change any policies or practices that would permit such suppression of protected speech to recur in the future—even when university leaders are pressured to do so by legislators or other powerful actors.

Given the urgent nature of this matter, FIRE requests a substantive response to this letter no later than close of business Tuesday, April 30.

Again, as FIRE notes, all this rests on the news accounts, since the legal analysis necessarily turns on the facts. I’d be happy to revise this as more facts come available. Here is the UT President’s statement on the matter, to which the FIRE letter in some measure replies:

This has been a challenging day for many. We have witnessed much activity we normally do not experience on our campus, and there is understandably a lot of emotion surrounding these events.

Today, our University held firm, enforcing our rules while protecting the Constitutional right to free speech. Peaceful protests within our rules are acceptable. Breaking our rules and policies and disrupting others’ ability to learn are not allowed. The group that led this protest stated it was going to violate Institutional Rules. Our rules matter, and they will be enforced. Our University will not be occupied.

The protesters tried to deliver on their stated intent to occupy campus. People not affiliated with UT joined them, and many ignored University officials’ continual pleas for restraint and to immediately disperse. The University did as we said we would do in the face of prohibited actions. We were prepared, with the necessary support to maintain campus operations and ensure the safety, well-being and learning environment for our more than 50,000 students.

We are grateful for the countless staff members and state and University law enforcement officers, as well as support personnel who exercised extraordinary restraint in the face of a difficult situation that is playing out at universities across the country. There is a way to exercise freedom of speech and civil discourse, and our Office of the Dean of Students has continued to offer ways to ensure protests can happen within the rules. The University of Texas will continue to take necessary steps so that all our University functions proceed without interruption.

Note that I’ve consulting for FIRE on various matters, but not on this matter, and no-one asked me to blog about it.

An excerpt from his column in yesterday’s N.Y. Times:

Last Thursday, in the music humanities class I teach at Columbia University, two students were giving an in-class presentation on the composer John Cage. His most famous piece is “4’33”,” which directs us to listen in silence to surrounding noise for exactly that amount of time.

I had to tell the students we could not listen to that piece that afternoon because the surrounding noise would have been not birds or people walking by in the hallway but infuriated chanting from protesters outside the building. Lately that noise has been almost continuous during the day and into the evening, including lusty chanting of “From the river to the sea.” Two students in my class are Israeli; three others, to my knowledge, are American Jews. I couldn’t see making them sit and listen to this as if it were background music.

I thought about what would have happened if protesters were instead chanting anti-Black slogans or even something like “D.E.I. has got to die,” to the same “Sound Off” tune that “From the river to the sea” has been adapted to. They would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence. I’d wager that most of the student protesters against the Gaza war would view them that way. Why do so many people think that weekslong campus protests against not just the war in Gaza but Israel’s very existence are nevertheless permissible? …

Today’s protesters don’t hate Israel’s government any more than yesterday’s hated South Africa’s. But they have pursued their goals with a markedly different tenor — in part because of the single-mindedness of antiracist academic culture and in part because of the influence of iPhones and social media, which inherently encourage a more heightened degree of performance. It is part of the warp and woof of today’s protests that they are being recorded from many angles for the world to see. One speaks up.

But these changes in moral history and technology can hardly be expected to comfort Jewish students in the here and now. What began as intelligent protest has become, in its uncompromising fury and its ceaselessness, a form of abuse.

As our readers may gather from my past posts, I don’t think that the protests should be viewed as not “permissible” based on their viewpoint, though I do think that a university can reasonably limit extended loud protests audible from classrooms, whether what’s being chanted is “from the river to the sea” or “abortion is genocide” or “Hare Krishna” or “Go Bruins!” But in any case, McWhorter’s perspective, which is more about campus culture rather than law, struck me as worth noting.

Talia Khan, an MIT graduate student, had a detailed and powerful statement about what she sees as anti-Semitism on campus (apparently written in response to an invitation from Reps. Fox and Stefanek).

Extraordinary video in which a Jewish student highlights the extent of antisemitism on campus at @MIT. Elite universities and their DEI bureaucracies have failed us. pic.twitter.com/X2lX9sMw8l

— Ed Leon Klinger (@edleonklinger) December 6, 2023

And I think it well reflects how many different things are being mixed together here. For instance, the statement refers to “a radical anti-Israel group at MIT called the CAA” whose members have “stormed the offices of Jewish faculty and staff in the MIT Israel internship office. Staff reported fearing for their lives, as students went door to door trying to unlock the offices.” If this is accurate, then it should certainly be punished. Likewise as to “Jewish students being physically blocked from moving through the anti-Israel crowd through the main MIT lobby.”

Similarly, this allegation, if accurate, would show serious and improper viewpoint-discriminatory enforcement of MIT’s rules:

I was forced to take down my Israeli flags and a poster that said “No Excuse for Hate” and “We Stand With Israel” in my office window after a new banner rule was created 6 days after I put my flags up. Other banners, such as those for “Black Lives Matter” are still hanging proudly in office windows today. A rule was created by the MIT administration to appease bigoted students who can’t bear to see that Israel exists.

On the other hand, here is another part of the statement:

I will share a few examples of antisemitism on campus and let you all decide if all is well on MIT’s campus. First, I was forced to leave my study group for my doctoral exams halfway through the semester because my group members told me that the people at the Nova massacre deserved to die because they were partying on stolen land. This negatively impacted me both emotionally and academically.

Her classmates in her study group sound like awful people, and she should certainly not want to study with them. But is MIT really supposed to discipline students for conversations with classmates in which they make morally repugnant statements? And, if MIT is encouraged to do this, what do you think MIT will do to a Jewish student says something to a few classmates that says he has no sympathy for the deaths of Palestinians in the Israeli response in Gaza, when an Arab or Muslim student complains that “this negatively impacted [her] both emotionally and academically”? Even if you think the two are morally different, as I do, how confident are you that MIT authorities will draw the same moral distinction, and punish the first but not the second?

I appreciate that many universities have indeed tried to police a wide range of comments by their students. That was wrong in those cases, and it would be wrong in cases such as the one Khan describes. It’s unpleasant when students hear offensive things from classmates, and to have to find a new study group with more decent classmates. It’s much worse when students have to live in fear of university punishment for the views they express to each other.

Again, there is plenty of misconduct that should be punished, whether because it breaks content-neutral rules preventing trespassing or blocking pathways, or because it involves unprotected speech such as threats. Universities shouldn’t discriminate against pro-Israel messages.

University administrators and faculty shouldn’t single out Jewish or Israeli students, and I don’t think they should condemn Israel when doing their jobs, either. Khan alleges, for instance, “the interfaith chaplain at MIT”—apparently a position in the MIT administration—”interrupted an event four times to call out Israel as an oppressive white supremacist colonizer state and then asked all students who keep kosher to raise their hands to receive their meals, reportedly examining these students to an extent that non-Jewish students felt uncomfortable and compelled to report the event.” That’s not what an interfaith chaplain ought to be doing.

The problem is that calls for restricting such misbehavior also often seem to target students’ mere expression of their own views—restrictions that, if enforced, would create a police-state-like “police campus” where any conversation on a controversial topic could lead to threat of suspension or expulsion. And of course such a police campus is likely to end up punishing pro-Israel students as much as any other students (especially if it is correct that many in the MIT administration are personally anti-Israel).

I’ve heard some suggest that it’s proper for universities to expel students for publicly defending the Hamas murders. (This has included both public universities and private universities that had pledged to protect student free speech.) Others have suggested that faculty members who defended the murders be fired. And there have been calls for nonacademic employers to refuse to hire students who have defended the murders. (Such refusals to hire based on a student’s speech are legal in most states, though illegal in some.)

If you take this view, let me ask this hypothetical. Say that a student or a professor writes something like this:

With Iran getting a nuclear bomb soon, Israel has to make clear: If Iran (with a population almost 10 times that of Israel) bombs an Israeli city, Israel will bomb an Iranian city, aiming to kill 10 times the number of people killed by the Iranian bomb.

And none of this pretense about limiting the bombing to military targets. Japan surrendered because it was facing the loss of cities, not of military capacity. This is what Mutually Assured Destruction needs to be: tit for tat, civilian deaths for civilian deaths. In war, civilians pay for the sins of their governments, and the prospect of civilian deaths is often the main deterrent to aggression, or the main impetus to surrender; that’s just the way it is.

What would your view be?

1. The hypothetical author should be fired/expelled/etc. just like the pro-Hamas author. He’s embracing the deliberate killing of civilians; such advocacy is immoral and creates a hostile environment for Iranian-Americans.
2. The hypothetical author shouldn’t be fired/expelled/etc. He’s only defending killing of civilians (likely tens of thousands of civilians, or more), and not rape, kidnapping, beheading, etc. Likewise, people who only defended Hamas killing Israeli civilians shouldn’t have been fired/expelled/etc., so long as they made clear they didn’t endorse the rape, kidnapping, beheading, etc.
3. The hypothetical author shouldn’t be fired/expelled/etc., because he’s not celebrating the proposed bombing, but just explaining it as a practical necessity. If he were to add more emotionally enthusiastic rhetoric, then he should be fired/expelled/etc. Likewise, speakers who simply defended the Hamas attacks on the grounds that they thought them to be a necessary means to promote the Palestinian cause, without emotional enthusiasm, shouldn’t be fired/expelled/etc., either.
4. The hypothetical author shouldn’t be fired/expelled/etc., because he is just defending a policy of future killing of civilians, not actual current killing of civilians. But if the bombing does happen, and he defends it then, then he should be fired/expelled/etc.
5. The hypothetical author shouldn’t be fired/expelled/etc., because, in the scenario he is contemplating, Iran would be a sufficiently culpable initial aggressor and Israel would only be justifiably responding. In the Hamas attacks, Israel was not a sufficiently culpable initial aggressor against Palestinians, so Hamas’s actions were not justified.
6. The hypothetical author shouldn’t be fired/expelled/etc. unless his statements cause enough public outrage, complaints by wealthy donors, pressure by legislatures, objections by student groups, and so on. If it turns out that not a lot of people are upset by the prospect of the bombing of Iran, the speech should be protected. But the pro-Hamas authors should be fired/expelled/etc., because their statements have indeed caused public outrage.
7. Neither the hypothetical author nor the pro-Hamas authors should be fired/expelled/etc. by their educational institutions, because such institutions ought to have strong speech-protective rules that don’t turn on contestable moral judgments about who in an international conflict is an initial aggressor. But when it comes to hiring by other employers, the employers can and should draw moral distinctions based on such matters, so employers ought to refuse to hire the pro-Hamas speakers but ought not refuse to hire the pro-bombing-Iran speaker.
8. Neither the hypothetical author nor the pro-Hamas authors should be fired/expelled/etc. by their educational institutions or their private employers. (I set aside some exceptions for narrow classes of employees and employers where the employee’s statements are inconsistent with the employee’s specific duties, for instance if the bomb-Iran statement is written by a spokesman for an Iranian-American organization or the pro-Hamas statement was written by a spokesman for a Jewish organization.)
9. Something else?

My personal view is that an Israeli nuclear strike retaliating for an Iranian nuclear attack would be morally justified, horrific as the death toll for innocent civilians would be (and I’d have said the same about, for instance, an American nuclear strike retaliating for a Soviet nuclear attack), but that the Hamas killings were morally unjustified (even apart from the rapes and similar abuse). But I’m skeptical that educational institutions committed to free speech should draw such distinctions based on their moral judgments about who is the true aggressor in a contested foreign conflict. And I think that people who are calling for suppression of pro-Hamas speech now might want to consider about the precedent that such suppression would set for the future—especially if I’m right to suspect that it’s hard to draw defensible distinctions here.

But perhaps I’m mistaken, and in any event I’d love to hear what you folks think.

I wrote about the court decision in favor of plaintiff back in August; now I see that the parties have settled, and are asking for court approval of the following consent order:

1. Defendants are hereby permanently enjoined from censoring Schmidt’s views on the sexual identity of Artemis Langford and from applying the one-year table ban on Schmidt that was initiated on December 7, 2022.
2. This injunction does not diminish Defendants’ ability to sanction possible future misbehavior by Schmidt, such as continuing to engage with students who do not wish to speak with him.
3. Defendants shall pay certain attorney fees and expenses in the amount of $35,000
within 20 days of this Order….

Here’s my original post:

[* * *]

From Schmidt v. Siedel, decided yesterday by Judge Nancy Freudenthal (D. Wyo.) (see also the coverage in Cowboy State Daily (Clair McFarland), and this post about a pseudonymity issue in a lawsuit stemming from the sorority controversy):

Schmidt is an elder at the Laramie Faith Community Church…. He has reserved a table in the UW Union breezeway on a regular basis for the past 17 years. The UW Union allows campus groups and various outside organizations to utilize breezeway tables to communicate with students. The breezeway tables provide access to a high degree of student pedestrian traffic. Schmidt uses his breezeway table to display various DVDs and books. He also places on his table a Velcro-backed sign with plastic lettering to display different messages.

According to UW Officials, they have over the years warned Schmidt to stay behind his breezeway table and not engage in a confrontational manner towards passersby. The University alleges it has received and documented complaints from students that Schmidt “got in people’s faces” while trying to talk to them and chased after students who refused to speak with him. Schmidt states that he was not aware of any student complaints to University staff about him and received no warning from the University regarding student complaints.

In September of 2022, a UW student named Artemis Langford joined a UW sorority. Langford was born a biological male but identifies as female. In October, the UW university newspaper, the Branding Iron, ran a story about Langford joining the sorority, and included quotes from Langford. Other publications, including the Cowboy State Daily, Washington Examiner, and National Review, ran articles about Langford as the first openly transgender student in UW history to join a sorority.

Schmidt disagrees with the propriety of transgender students joining sororities, and on December 2, 2022, he placed a sign at his breezeway table in the Union stating, “God created male and female and Artemis Langford is a male.” Various students gathered in front of his table in an attempt to block others, and Langford, from seeing Schmidt’s sign. {Artemis Langford is both a UW student and an employee in the Wyoming Union.} These students engaged in tense debate with Schmidt.

UW Dean of Students Ryan O’Neil asked Schmidt to remove Langford’s name from his sign because it violated Article II Section 2.B.4 of the UW Union policies {“Requests [for table space at the WY Union] may be denied for reasons which include, but may not be limited to, conflict with the mission of the University, conflict with the mission of the Wyoming Union, unfeasible setup/turnaround time, and historic negligence or abuse.”}, and because it targeted an individual University student in a protected class. Schmidt initially refused to remove Langford’s name; however after O’Neil responded that she would call University Police, he agreed to remove Langford’s name. O’Neil left and Schmidt continued to speak with students from his table.

On December 5, 2022, UW President Edward Seidel sent out an email message to the UW community regarding the tabling incident. He stated that Schmidt had removed Langford’s name from his sign when asked and that “while [Schmidt] engaged in heated exchanges with students and perhaps others throughout the afternoon, these interactions, were not in obvious violation of UW policies.” Seidel went on to encourage community members to “engage regarding those with different perspectives with respect and integrity.”

Various student groups felt disappointed with Seidel’s response and on December 7, 2022, a UW alumni group sent a letter to Seidel disagreeing with his statement that Schmidt had not broken any UW policies. The letter recounted prior incidents in which Schmidt had allegedly yelled at and harassed students regarding their sexual identities. The letter asked Seidel to ban Schmidt from tabling in the UW Union. They stated that if he did not do so they would resign from alumni memberships, withhold donations to the University, and refuse to return to campus for future activities.

Later that day, Dean O’Neil sent Schmidt a letter suspending his ability to reserve a table in the UW breezeway until Spring 2024. She also reminded him to adhere to University policies or risk trespassing. She based this decision on a December 7th report from the University’s Equal Opportunity Report and Response Office which stated that Schmidt had violated UW Regulation 4-2 (Discrimination and Harassment) and noted that his behavior was “on a trajectory which, if continued, is likely to also create a hostile environment.” {UW Regulation 4-2 defines … [“harassment” as “Verbal or physical conduct that unreasonably interferes with an individual’s work or academic performance or creates an intimidating or hostile work or educational environment.[“]}

Dean O’Neil also cited the Wyoming Union Policies and Operating Procedures Article II Section 5.B.15 which prohibits discrimination or harassment and requires individuals tabling in the Union to bring views in a respectful and civil manner. Lastly, she referenced prior multiple verbal warnings to Schmidt for previous student complaints. Although Schmidt is unable to reserve a table in the breezeway until Spring 2024, he is not banned from campus, nor the Union building….

This likely violated Schmidt’s First Amendment rights, the judge concluded, and therefore issued a preliminary injunction that “enjoins [university officials] from censoring Schmidt’s views on the sexual identity of Artemis Langford and enjoins the application of the ban on tabling currently in effect.”

Discriminatory harassment at a university is primarily governed by Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. “Hostile environment” harassment cases first originated in the workplace. To bring a Title VII action for sexual harassment in the workplace, the harassment must be “must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” To determine if an environment is hostile the court examines the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

The Supreme Court extended these Title VII hostile environment cases to the Title IX context in Davis v. Monroe County Board of Education (1999), holding that “a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.“

In Bostock v. Clayton Cnty., Georgia, the Supreme Court ruled that Title VII extended to situations in which “an employer … intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex.”

These cases thus focus primarily on conduct, rather than pure speech. See also R.A.V. v. City of St. Paul (1992) (“Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.”) “[N]on-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause.” Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001). However, where “pure expression is involved, anti-discrimination law steers into the territory of the first amendment.” “‘Harassing’ or discriminatory speech, although evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections.” There is no “categorical ‘harassment exception’ to the First Amendment’s free speech clause.” …

Here, the facts do not demonstrate harassment under the Davis standard, i.e., harassment so severe, pervasive, and objectively offense that it denies the victims’ equal access to an institution’s resources and opportunities. Schmidt engaged in tense debate with students regarding the propriety of a biological male joining a sorority. He did not engage directly with Artemis Langford. His sign was pure speech and not conduct. Furthermore, Schmidt’s speech does not meet the University’s own definition of discrimination of harassment. There is no evidence Langford suffered any adverse consequences or experienced interference with academic or work performance.

Nor does Schmidt’s speech meet the lesser Tinker standard of “substantial disruption” or “invasion of the rights of others.” The University puts forth no evidence of either. Various students were upset by Schmidt’s speech, but the “‘mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint’ cannot justify the prohibition by school officials of a particular expression of opinion”.

Schmidt’s speech was expressive, with the intent to convey a particular message. Schmidt mentions Artemis Langford by name, but that is unavoidable, as the debate revolves around the propriety of a particular biological male participating in an activity— joining a sorority—traditionally reserved for biological females. Schmidt does not misgender Langford to denigrate her, but to debate a public issue. Normally, mentioning a student by name or ignoring a student’s requested pronouns has low expressive value. Outside of a debate about gender, misgendering is of limited communicative value.

Here Schmidt’s speech is part of an earnest debate about gender identity, a matter of public importance. “Gender identity … [is a] sensitive political topic[] and … undoubtedly matter[] of profound value and concern to the public…. Such speech occupies the highest rung of the hierarch of First Amendment values and merits special protection.” “Speech on matters of public concern is at the heart of the First Amendment’s protection.  [I]t is the essence of self-government.” This is particularly true on college campuses because they are the “marketplace of ideas.” While elementary and public schools prioritize the inculcation of social values, universities seek to encourage inquiry and the challenging of a priori assumptions.

Therefore, this Court finds that Schmidt’s speech is protected free expression and not harassment or discriminatory conduct.

The court went on to conclude that the “because University breezeway tables are not open to the general public and a reservation is required for use, this Court finds that the breezeway tables are a limited public forum,” where the government as property owner may impose reasonable and viewpoint-neutral restrictions. But it concluded that the restriction imposed by the university was likely viewpoint-based, and thus impermissible even in a limited public forum:

Here, Schmidt wishes to express his viewpoint that Artemis Langford is a male and to debate the propriety of Langford’s participation in a sorority. This is a viewpoint. The University counters that it allowed Schmidt to keep the remainder of his sign that did not contain Langford’s name. However, without Langford’s name Schmidt is unable to fully express his views regarding Langford’s sex specifically. Students approached Schmidt’s table to debate his views on Langford’s sex. Presumably some of these students have views opposed to those of Schmidt and believe that Langford is female and belongs in a sorority. There is no indication that those students were prohibited from debating Schmidt or speaking Langford’s name. Therefore, the University appears to be favoring one viewpoint over another….

{The granting of Schmidt’s preliminary injunction does not diminish the University’s ability to sanction possible future misbehavior by Schmidt, such as continuing to engage with students who do not wish to speak with him.}

I think this is the correct result, though I am even more skeptical of attempts to recharacterize speech as “harassment” than the judge is (see here). Note that a policy categorically forbidding outside groups from mentioning students by name might be seen as permissibly viewpoint-neutral; but that wasn’t the policy here: Saying that Langford is a woman and not a man wouldn’t have been forbidden; likewise as to, for instance, condemning by name one of the students challenging Langford’s admission to the sorority.

Schmidt is represented by Douglas J. Mason (Mason & Mason) and Nathan W Kellum (Center for Religious Expression).

Newsweek (Matthew Impelli) reported today on this incident, which involved “a graduate student” instructor “at UC Berkeley’s Department of Ethnic Studies.” (The story may have been first broken by Israelly Cool [David Lange].) Fortunately, UC Berkeley promptly rejected this; when I e-mailed the media relations office, I was informed that:

As soon as the administration was made aware of the assignment it moved quickly to ensure that it would be changed. The situation has been remedied, the assignment has been changed and there are now a number of options for extra credit, not just one. Students can now attend any local event they wish—such as a book talk or a panel discussion—-related to the course’s subject, including the protest…or they can watch any documentary they wish about the Middle East.

The Berkeley provost’s office has also just sent out this follow-up, apparently to “all faculty, staff, and students”:

I write to remind people of University policy as pertains to academic freedom and political advocacy in the classroom. While instructors enjoy considerable freedom and all individuals, when acting as private citizens, enjoy free speech rights, University policy does impose limits on using the classroom or one’s course for purposes of political advocacy.

I call your immediate attention to Regents’ Policy 2301, which prohibits canceling a class session for the purpose of encouraging students to participate in a protest or rally.

The principal policies that apply to these matters are (URLs at end of message):

Among other limitations, these policies prohibit:

• significant intrusion of material unrelated to the course (APM 015, Section II, A.1.b & Section B4(b) of Unit 18 agreement);
• use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons (APM 015, Section II, A.5 & Section B4(h) of Unit 18 agreement); and
• misuse of the classroom by, for example, allowing it to be used for political indoctrination, for purposes other than those for which the course was constituted, or for providing grades without commensurate and appropriate student achievement (Regents’ Policy 2301).

In addition,

• Regents’ Policy 2301 stipulates “the right of students to have their classes held on the regularly scheduled basis and to be taught by the instructor whose responsibility it is to teach the course in question is to be upheld”; and
• APM 015, Part II, A.1.c. defines”significant failure to adhere, without legitimate reason, to the rules of the faculty in the conduct of courses, to meet class, to keep office hours, or to hold examinations as scheduled” to be a violation of the Faculty Code of Conduct.

Instructors are also reminded of the campus’s Principles of Community (https://diversity.berkeley.edu/principles-community) and of the importance of ensuring that students are not made to feel intimidated, threatened, and/or excluded in their classes.

Instructors who have questions concerning permissible or impermissible actions should discuss them with their department chair or school dean.