After Michigan State University’s (MSU’s) internal review of the school’s Student Accountability in Community (SAC) program, FIRE remains unconvinced of the program’s constitutionality.
That was the message sent to MSU Vice President for Student Affairs Lee N. June in a letter yesterday from FIRE President Greg Lukianoff. Yesterday’s letter was sent in response to June’s March 7 letter to FIRE, which outlined MSU’s changes to the SAC program after FIRE repeatedly criticized it as unconstitutional. Specifically, June said that MSU’s review of the SAC program concluded that there was “no basis for believing that the program has employed offensive tactics,” and that contrary to FIRE’s assertions, “SAC program activities have not entailed calling upon participants to adopt specified responses in given situations.” June further stated that while MSU “saw the need to immediately adjust who is authorized to refer a student to the SAC program,” that the school saw “no problem with [students who have been sanctioned through the judicial process] participating in the SAC program.” Finally, June promised that MSU would update the Student Life website to “more accurately describe the nature of the program.”
In yesterday’s response, FIRE made clear that scrapping the SAC program is MSU’s best bet, stating that “while reform is possible, we believe the outright dismantling of the program remains MSU’s most effective means of complying with the school’s legal requirements under the Constitution.” With that said, FIRE then outlined three essential criteria for assessing the SAC program’s reform, or lack thereof:
First, the SAC’s speech code element (i.e., whereby students may be referred to the SAC as punishment for engaging in constitutionally protected speech) must be eliminated, and conclusive documentation of the change must be provided. Next, the possibility of referral to the SAC must only arise after a student is found guilty of a serious offense by a proceeding that comports with constitutional standards of due process. Finally, referral to the SAC must be truly optional—the student must choose whether or not to attend the program—and made only with the student’s informed consent.
FIRE’s letter then assessed how the changes proposed by June measure up, and found that in each regard, MSU’s reform is either insufficient or inconclusive:
As far as the SAC’s function as a speech code is concerned, it is difficult if not impossible to determine, given the limited information contained in your letter, whether the SAC program still singles students out for referral for engaging in constitutionally protected speech. If you have changed the relevant SAC materials, please send us the new materials in which you have made it clear that the SAC program is not to be used to punish protected speech…[Y]ou seem to indicate that students will no longer be referred to the SAC program without first facing judicial sanctions. But while information available at MSU’s Department of Student Life website indicates that students facing complaints or accused of violations of the school code are afforded hearings that comport with standards of due process, it is not clear that only students found guilty of serious offenses are subject to possible referral to the SAC program. We wonder, for example, whether “offenses” that previous SAC program materials indicate would result in referral—such as slamming a door in an argument with a significant other—remain legitimate grounds for SAC referral. Additionally, because MSU maintains a speech code that allows for punishment for engaging in constitutionally protected speech, it is entirely possible—perhaps even likely, given your characterization of the SAC program as a means to “enhance understanding within our community”—that a student found guilty of “harassment on the basis of political persuasion,” for example, could be referred to the SAC program. For the SAC program to pass constitutional muster, students must not face referral to the program as a punishment for constitutionally protected expression…
[I]t is presently unclear whether this means that the student him- or herself will have the option of attending the program as punishment, or whether the judicial administrator will have the option of referring the student to the program as but one of several punishment alternatives.
In sum, FIRE concluded that it is “difficult to fully grasp from your March 7 letter alone if the changes made to the SAC program are satisfactory”:
Although you write that MSU is “updating the Student Life website to more accurately describe the nature of the program and to reflect the changes referenced in this letter,” the SAC page on the Student Life website has been unavailable to the public since FIRE’s receipt of your letter. While FIRE appreciates your efforts to address the constitutional problems with the SAC program outlined in our previous letters, as of this writing we cannot be sure that the substantive changes required have been made. If MSU is indeed serious about addressing concerns about the constitutionality of the SAC program, please provide updated program materials demonstrating that the necessary reforms have in fact been implemented.
The question now, of course, is how MSU responds moving forward. We’ll keep you updated.