George Washington University Assaults Free Speech AGAIN! (Last Time Was An Award-Winning Fiasco)

John Banzhaf | Public interest lawyer and law professor

My employer, George Washington University (GWU), is assaulting the free speech and academic freedom rights it guarantees in writing to its students.

Amazingly, it is doing it again, even though its most recent attempt was an abject failure it was forced to abandon under threats of law suits, being publicly held up to both national and international shame and ridicule, almost universal condemnation in the world press, threats of cuts in alumni support, etc. Indeed, that stunt actually won my university several wards for stupidity.

WHAT JUST HAPPENED

According to our student newspaper, the administration is “looking into” a Snapchat post purporting to show two white members of a GWU sorority chapter, with one holding a banana peel. The caption reads: “Izzy, ‘I’m 1/16th black.’” Many on campus are denouncing it as “racist.”

The Hatchet reports that “the University said it would examine the incident,” and “we take this seriously and we’re going to look into it.” It appears that both an Associate Dean of Students and the Director of our Multicultural Student Services Center are already involved in this investigation.

Our esteemed provost, Forrest Maltzman, declared “that is unacceptable to me” — very strong words from a senior administrator who yields vast power over students.

Indeed, shortly after reporting that “the University has been in contact with [the sorority’s] national organization,” the three students involved – the two students depicted in the apparently private communication on Snapchat, as well as the student who took the picture – were expelled from their sorority.

The Hatchet also reported that “student organizations held a forum to respond to the incident.” At the forum at which many students called for the entire sorority chapter to be banned, the associate dean of students, Tim Miller, reportedly promised that “officials had been working throughout the day to address the outrage.” “Getting rid of chapter is not something that happens within a 12 to 15 hour period,” he told the assembled students, many of whom were calling for the end of the sorority.

WHAT DID NOT HAPPEN

Several administration officials have strongly criticized the posting — which of course is entirely appropriate, and the best way to fight against speech with which they disagree.

It’s best not only because it’s one of the few steps which can be taken legally, but also because threatening or punishing students who express controversial views is likely to do nothing to change their underlying thinking. Rather, it may only harden their positions, they may be seen by other students as martyrs, and their ideas may be driven underground where they will be less susceptible to change by reasoned analysis and discussion.

But unfortunately administrators have gone much further by conducting a full-fledged investigation; an ominous development since the last time this type of GWU investigation included a request for the municipal police to consider a controversial posting as a “hate crime,” which it clearly wasn’t.

Thus administrators appear to have gone far beyond merely expressing their personal opinions when an official in a position to expel the students from the university opines that such speech is “unacceptable,” and confers with sorority leaders just before the young women were expelled.

But strangely there has been no discussion — by the administration, the student newspaper, student leaders, or faculty who write learned papers on and claim to revere free speech and academic freedom — of why any such investigation, much less any official action, is appropriate at a university which guarantees its students freedom of speech and academic freedom, especially since the speech in question seems to be private (and apparently intended to vanish shortly after it is viewed) rather than public.

WHAT THE LAW REQUIRES

This is very important since even the most racist and hateful postings and other speech are fully protected by the First Amendment. As the Supreme Court has often ruled, there is no exception under that amendment for hate speech and/or for racist speech — something many college administrators and faculty, who should know better, too often forget, at least until they are sued.

While GWU, as a private university, is not directly bound by the First Amendment, many courts have held that guarantees in university documents — e.g., statements of student rights and responsibilities — about the rights of students to express views on controversial topics, incorporate by reference the protections afforded free speech at public universities and make the guarantees legally binding.

Indeed, what happened on our campus — or, technically, off campus and on the internet — is exactly this type of speech which needs protection, since speech in favor of diversity and racial harmony, for example, being popular and supported by the administration, hardly needs any protection from official punitive action.

Furthermore, it would be surprising – and certainly would be front page news – if the George Washington University took the position that its students are entitled to far less free speech protections and academic freedom than students at public universities like the University of Maryland or the University of Virginia simply because GWU is private.

WHAT UNIVERSITY POLICY PROVIDES

Indeed, The University’s published policy protecting the rights of individual students to speak on campus — much less off campus in private postings on the internet — even if their views are unpopular or racist, is very clear.

It expressly states, as a “Basic Assumption” regarding “Freedom of Expression” that “individual students shall be free . . . to express opinions publicly. . . . They shall be free to support causes by orderly means that do not disrupt the regular and essential operation of the institution.”

It also guarantees that “The George Washington University is committed to the protection of free speech . . . individual students shall have the right to distribute pamphlets . . .provided these actions are not disruptive of normal University functions.”

Despite these apparently clear and unambiguous guarantees, which a court may well find are binding on the institution, and guarantee to its students at least the same rights students at state universities enjoy, GWU has often tried to suppress views it finds unpopular and/or not fully consistent with its own policies of inclusion, diversity, harmony between all groups, etc.

THE LATEST GWU FREE-SPEECH FIASCO

Interestingly, the last major time GWU tried to infringe upon a student’s right to express a point of view – in that situation to expel a student for posting a swastika, or more precisely something which looked somewhat like a swastika but wasn’t – I played a major role in forcing it to back down through threats of law suits, being publicly held up to shame and ridicule, almost universal condemnation in the world press, threats of cuts in alumni support, etc.

The situation in which I was involved concerned a symbol which can be highly offensive and even threatening on the basis of religion, whereas the current situation involves a picture and caption which many consider highly offensive (but probably not truly and directly threatening) on the basis of race. But the underlying principle seems to be the same, and it’s surprising that GWU does not seem to have learned its lesson from the last fiasco.

For example, its actions in seeking to expel a student for very briefly posting an ancient and important religious symbol, just because a few students might briefly mistake it for a swastika, were among the top 10 in the Daily Caller’s Third Annual College Stupidity Awards.

That piece, explaining why the action was incredibly stupid as well as a breach of the rights of free speech GWU guarantees to its students, quoted me as saying: “It’s like banning the 6-pointed Jewish Star of David because some people might mistake it for the pentagram symbol and human sacrifice, or expelling a student for using the word ‘niggardly’ because other students may mistake it for a racist word and get upset.”

The Daily Caller also held GWU’s action up to well-deserved ridicule in a piece entitled “George Washington U. Emulates Satan-Fearing West Texas School District With Religious Symbol Ban.”

The piece noted and drew an analogy to an earlier attempt by a Lubbock, Texas, school “to ban certain nefarious religious imagery in an ill-fated dress code.” These items included not only pentagrams, upside-down crosses, the anarchy symbol, but even the peace symbol. Now it appears that GWU is doing something at least as stupid, as well as probably illegal.

GWU’s subsequent statement that any display of anything which might be mistaken for a swastika could be grounds for expulsion, even though a display of even a real swastika would obviously fall under “speech” protected by the First Amendment – which the Supreme Court has held protects even more inflammatory (pun intended) speech such as a burning KKK cross – also earned it a place of dishonor on The Daily Caller’s list of ATROCIOUS Colleges For Free Speech [capitalization in original].

WHY THIS CONTINUES TO HAPPEN

Universities often infringe upon the free speech rights of students over alleged racial slights – remember when an entire fraternity was summarily expelled because a smaller number of its members on the bus sang a song with racist lyrics – because of ignorance or willful disobedience.

Some people just don’t understand that the guarantees of free speech protect virtually all types of controversial speech, even when displayed openly on a college campus, which might be embarrassing, disparaging, or even downright racist, sexist, etc., even though it may cause serious harm. But constitutional rights are very important, and therefore are guaranteed, even when they cause much greater harm than seriously bruised and hurt feelings from hate speech.

For example, a simple violation of so-called Miranda rights — “The criminal is to go free because the constable has blundered,” as Judge Benjamin Cardozo put it — often results in a murderer, rapist, or armed robber being set free, and some who are set free for this reason will commit those or similar horrible crimes again. The harm to these victims is obviously much more serious than this Snapchat posting, but that doesn’t mean that those concerned about such very serious harms can or should violate the Constitution.

Hardened criminals, likewise likely to repeat their serious crimes, are also sometimes freed because they were denied other rights; e.g, the right to effective counsel in criminal proceedings, protections against illegal searches and seizures, guarantees against double jeopardy, etc. The right to free speech is at least as important to protect, even though some speech may cause some harm to those in an affected groups. Perhaps that’s why it comes first in our constitution.

One remedy for these violations by university officials is to try to educate them, but that works best when faculty at the affected institution speak up forcefully and effective whenever its administration violates student rights at their own institution. Unfortunately, faculty all to often fail to perform this important function.

But, when that doesn’t work, there sometimes is another remedy: SUE THE BASTARDS!

John Banzhaf is a legendary public interest lawyer and a law professor at George Washington University Law School.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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