Nothing to Investigate after Nebraska Student Displays Confederate Flag

By April 25, 2012

The Daily Nebraskan reported on Tuesday that the University of Nebraska-Lincoln (UNL) has launched a disciplinary investigation after learning that a student was seen in public carrying a Confederate flag. Of course, displaying a flag is protected expression on a public university campus, so it seems that there is nothing to investigate. 

Here are the details according to witness Rebecca Carr and the Daily Nebraskan:

A group of about 25 to 30 young men, dressed in camouflage fatigues, were walking past Seaton Hall singing "The Star-Spangled Banner" at the top of their lungs, Carr said. 

The three men in the front of the group were carrying three flags: the American flag, the rebel battle flag and a POW/MIA flag. Upon seeing the rebel battle flag, Carr took out her phone to record the procession. She was unsure of why the group was walking around and didn’t immediately associate the group with Delta Tau Delta until she saw the group members on the house porch. 

[...]

The reason the fraternity members were wearing fatigues and singing the "The Star-Spangled Banner" was their philanthropy, M*A*S*H, an outdoor barbecue event that raises proceeds to support the men, women and families who serve in the armed forces. 

[...]

Vice Chancellor for Student Affairs Juan Franco said he did not have much to say about the incident; only that it was being investigated.

"We’re going to try to determine exactly what happened," Franco said in a telephone interview Monday afternoon. "At this point … Judicial Affairs will be meeting with the leadership of the fraternity and specifically with the students involved." [Link added.]

Unfortunately, UNL has chilled expression on campus by subjecting protected speech to a Judicial Affairs investigation. This is particularly unfortunate because UNL is one of a select group of "green light" universities in FIRE’s Spotlight database of speech codes-on paper, UNL’s policies restrict speech so little that we give UNL our highest rating

I would direct Juan Franco’s attention to two relevant statements. One is from then-University of Alaska president Mark Hamilton, who distributed a university-wide memo during a free speech crisis:

What I want to make clear and unambiguous is that responses to complaints or demands for action regarding constitutionally guaranteed freedoms of speech CANNOT BE QUALIFIED. Attempts to assuage anger or to demonstrate concern by qualifying our support for free speech serve to cloud what must be a clear message. Noting that, for example, "The University supports the right to free speech, but we intend to check into this matter," or "The University supports the right of free speech, but I have asked Dean X or Provost Y to investigate the circumstances," is unacceptable. There is nothing to "check into," nothing "to investigate." 

Second, just six months ago at Western Washington University (WWU), the university did the right thing by ending an ill-considered disciplinary investigation of protected speech after FIRE got involved. WWU Associate Dean of Students aptly wrote:

Using the Student Rights and Responsibilities Code to talk with a student … was an inappropriate use of our Code.

Unless there’s more to this case that nobody knows about, this really ought to end the case at UNL.