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Monday, April 29, 2013

First Amendment on campus

Here are a couple of stories  about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.

The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.

Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle  internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.

My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.

For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.

The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."

Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.

Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.

Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.

Posted by Howard Wasserman on April 29, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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Regarding social work and counseling programs, see Ward v. Polite, 667 F.3d 727 (6th Cir. 2012).

Posted by: Steven Lubet | Apr 29, 2013 12:36:50 PM

I think the parade situation is very different from one where a professor requires a student to write a paper taking a position that is contrary to the one actually held by the student. With the paper, no one reads it but the professor and the student, both of whom know that the student was compelled to take that position. With the parade, there's a much larger audience that will believe that the marching student actually subscribes to the parade's position. Forcing a student into that situation raises a much more serious First Amendment problem. It would be somewhat similar to requiring students to write letters to their elected representatives espousing positions with which they disagree, which seems clearly problematic.

Posted by: Emily Gold Waldman | Apr 29, 2013 12:04:29 PM

But professors compel speech all the time and they must be free to do so in the classroom and in class assignments. In simplest terms, I can reserve good grades only to those students who reach conclusions I like or through analysis I like. More directly, I can (and I think I would have good pedagogical reasons) to compel students to take a position on a subject they might not agree with. The question is how far outside the classroom those compulsions can continue.

Posted by: Howard Wasserman | Apr 29, 2013 11:06:14 AM

Without drawing a line (I'm copping out here), it seems obvious that the GBLT parade is compelled speech akin to a loyalty oath. And I feel that the public nature of the event doesn't change the analysis so much as (1) provides evidence that the professor is compelling speech, and (2) makes the compulsion more onerous.

Whether this means that public school assignments cannot mandating "taking a viewpoint" is something I'm not sure about. But what about an assignment: "march in at least one parade this semester on behalf of a cause you disagree with?"

Posted by: AndyK | Apr 29, 2013 11:00:12 AM

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