Early last month, University of Houston student body vice president Rohini Sethi posted “Forget #BlackLivesMatter; more like #AllLivesMatter” on her Facebook account following the shooting deaths of five police officers during a Black Lives Matter protest in Dallas. The controversy that has ensued continues this week, raising interesting questions about student government and the First Amendment.
Sethi’s July 7 post generated outrage amongst her peers and sparked calls for her resignation from student government. Sethi deleted the post, but did not resign, explaining in a July 12 Facebook post that she hoped instead to “create the possibility of a culture rooted in open discussion” by talking to her peers and critics. As reported by The Chronicle of Higher Education, Sethi met with the Black Student Union and The Collegiate 100 shortly afterwards, but calls for her resignation persisted.
Yesterday, The Washington Post reported that Sethi has been suspended by the Student Government Association, which last week granted Student Body President Shane Smith “temporary power” to take action against her. The Post also reported that Sethi offered to take a cultural sensitivity workshop.
Sethi has voiced her disappointment with the decision:
UH SGA has made its decision. I disagree with the sanctions taken against me by my SGA because I believe I have done a great deal to better understand the controversy I caused. I have also apologized for my words because no student should feel as though I do not have their best interests at heart. Even so, I will abide by the sanctions for as long as they are in place.
In a statement posted yesterday afternoon on Twitter, the University of Houston characterized the decision to suspend her as the sole responsibility of the student government and made clear that Sethi would not be subjected to university discipline:
The University of Houston has become aware that the Student Government Association (SGA) has suspended its vice president, Ms. Rohini Sethi, from participating in SGA activities. Actions by SGA, a registered student organization subject to its own governance, are not University actions and do not affect the academic standing of a student at the University of Houston. The University of Houston continues to stand firm in support of free speech and does not discipline students for exercising their Constitutional rights.
The university’s statement anticipates the interesting questions raised by Sethi’s punishment.
As a threshold matter, there is no question that Sethi’s speech is protected by the First Amendment. Her statement is a classic instance of political speech, expression which “occupies the highest, most protected position” under the First Amendment. R.A.V. v. St. Paul, 505 U.S. 377, 422 (1992). As the University of Houston—a public institution—wisely recognizes, any official discipline meted out to Sethi on the basis of her Facebook posts would be a blatant violation of the First Amendment.
But what about the Student Government Association? Does its action against Sethi raise First Amendment concerns?
In its statement, the university characterizes the SGA as “a registered student organization subject to its own governance”—not a governmental actor, bound by the First Amendment. The university is correct to posit that student organizations are independent from the university itself, and, accordingly, speak for themselves. The Supreme Court has made clear that the expressive activity of student organizations “is not that of the University or its agents.” Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000).
This distinction between student organizational speech and the university’s own speech is important for protecting student expressive rights. In significant part, it’s why a federal judge held this past January that Iowa State University can’t regulate the expression of a student chapter of the National Organization for the Reform of Marijuana Laws as though it were “government speech.” Likewise, it’s why Georgetown University Law Center was wrong to prohibit a student organization supporting Senator Bernie Sanders’ presidential campaign out of misplaced worries that the student group’s speech would jeopardize the university’s tax-exempt status.
Student organizational speech is not the university’s speech, and cannot be controlled or punished as such. Likewise, student organizations must be accorded the associational right to govern themselves as they see fit—a right that includes making decisions about leadership and sanctions for expressive activity the group dislikes.
But is the Student Government Association a regular student organization, as the University of Houston suggests? Or are student governments at public universities more like governmental actors?
The answer lies in the powers wielded by the student government. When a student government at a public institution administers mandatory fees collected from students to support student groups, it is “intertwined with the state in collecting, budgeting, and allocating funds to create a forum for speech,” and thus “acts under the color of state law.” Amidon v. Student Ass’n of the State Univ. of N.Y. at Albany, 399 F. Supp. 2d 136, 145 (N.D.N.Y. 2005), aff’d, 508 F.3d 94 (2d Cir. 2007). The student government must therefore make its decisions in a viewpoint-neutral manner. If a student government entrusted with this power disburses or withholds mandatory student activity fees based on a student group’s viewpoint, the public institution must intervene.
For example, last November, the Associated Students of the University of California, San Diego voted to strip funding from all student media outlets in an effort to silence The Koala, a student humor publication. FIRE and the ACLU of San Diego & Imperial Counties each wrote to remind the administration and the student government that, as FIRE put it, “the university has a non-delegable duty to uphold the First Amendment rights of its students and student organizations and cannot permit its student government to administer mandatory student fees in an unconstitutional manner.”
However, the University of Houston’s Student Government Association does not administer the Student Services Fee, which totals $255 per semester. By statute, that’s the purview of the Student Fees Advisory Committee. Indeed, the SGA’s funding is controlled by the Student Fees Advisory Committee. (For the 2016 fiscal year, it received $147,373.) Accordingly, it makes more sense to consider the SGA as a “regular” student organization. The SGA may exercise its own associational right to determine whether leaders like Sethi should be punished in ways that would be impermissible were they to be enforced by the university itself.
And indeed, the SGA has already made that determination in its own governing document—and that document prohibits precisely the punishment the SGA has imposed on Sethi.
Section 2.01 of the Constitution of the Student Government Association of the University of Houston, most recently amended this past March, states:
As a component of University of Houston, a public educational institution of the State of Texas, the Student Government Association shall take no action abridging the rights, immunities and privileges granted to students under the Constitution of the United States of America, the Constitution of the State of Texas, U.S. federal law or under the laws of the State of Texas. Nothing in this Constitution shall be construed to deny or abridge these rights, immunities and privilege.
In suspending its vice president for speech protected by the First Amendment, the SGA may not have violated the United States Constitution, but it has plainly violated its own. Perhaps just as lamentably, the SGA has chosen to privilege punishment over dialogue, teaching fellow students that the answer to speech with which one disagrees is top-down punishment, not grassroots persuasion, conversation, and, ultimately, education. This is a sad, illiberal lesson, and the SGA should reverse course.