In Davidson College student newspaper The Davidsonian, student Max Feinstein recounts how, earlier this fall, he was asked by a college administrator to remove a rainbow flag hanging from his dorm room window, citing a new college policy. After some questions, Feinstein discovered that the policy was unwritten:
When I asked about this new policy, I requested to see it in writing. I was surprised to learn it does not exist in any RLO guidelines; nonetheless, it is apparently something I should follow unquestioningly. However, the Director of Residence Life ensures it will next year. Additionally, Davidson has no precedence for prohibiting hanging flags outside of windows, so this new decision seems arbitrary and uninformed.
I inquired where this new rule originated, and the Director of Residence Life stated it was a decision he could make individually. It’s his job. He even apparently has the backing of the Dean of Students. The Director of Residence Life felt this was a decision above the input of the student body.
Feinstein is rightly troubled by the administrator’s vague and shifting rationales for requesting the flag be removed, and he is correct that this incident should concern all Davidson students.
Davidson is a private college, so it is not legally bound by the First Amendment. The college does, however, state on its website that the Davidson community is “founded ... on free, unfettered inquiry”—language normally associated with robust free speech rights. Feinstein is almost certainly not alone in coming to Davidson with a reasonable expectation that he would be able to express himself freely.
According to Feinstein’s account, though, it is far from clear that Director of Residence Life Jason Shaffer was simply applying content-neutral regulations when he asked Feinstein to remove his flag. Feinstein says that Shaffer initially cited safety concerns but later said that the more pressing problem was that someone might interpret the flag as representing the viewpoints of the entire dorm. Shaffer’s change in rationale itself is a red flag. But what is more worrying is that when Feinstein asked to see a policy that prohibited placing flags outside of dorm windows, he was told that one does not exist—although one might be officially implemented next year. Nevertheless, Shaffer allegedly stated that he had the authority to enforce this unwritten policy on his own.
This might sound familiar to Torch readers: Earlier this year, Dixie State University swiftly wrote a new policy specifically to justify rejecting a student group applying for official recognition.
Enacting and enforcing new restrictions on free speech on a whim presents several problems.
First, students must be able to make informed decisions about what schools to attend, and sometimes this choice is based on a university’s policies—which must be written if they are to be known. Just as Davidson’s stated support for “unfettered inquiry” sends a signal to prospective students that they will not be unduly restricted in their expression, so too does the lack of written policies against window flags.
Second, although it doesn’t sound as though Feinstein was disciplined for continuing to hang his flag, ad hoc rulemaking is a dangerous precedent to set. A college that censors students based on unwritten policies may very well subject students to further disciplinary action based on unwritten policies—and FIRE has seen this happen before. Additionally, without written guidelines, administrators can easily choose to enforce rules selectively against viewpoints with which they disagree.
This is not the first time a school has asserted a bogus reason for having someone take down window decorations, either. In June, a Ball State University administrator told telecommunications professor Dominic Caristi to remove an Italian flag that had been hanging without incident for years, citing a policy that was clearly not applicable to indoor decorations. Thankfully, after FIRE stepped in, Caristi was allowed to re-hang his flag.
I hope Davidson decides to resolve this issue the same way. But Feinstein worries Davidson will not. As he described to The Huffington Post, upon hearing about the incident, many students chose to hang rainbow flags outside their own dorm room windows in solidarity. One student instead flew a Confederate flag. As Feinstein noted, if the school were to justify a decision to censor all flags in response to the appearance of the Confederate flag, it would essentially establish a “heckler’s veto”:
Feinstein said he was worried school officials would use this incident as proof that flag-flying can lead to conflict.
“However, I see this as the administration passively allowing homophobic and racist students to anonymously bully minorities on campus,” Feinstein said. “The individual who anonymously hung the Confederate flag obviously wants all the LGBT flags on campus down, as it was hung deliberately on the side of a building with about 10 LGBT flags. If the school sides to remove all flags on campus, then the person who hung the Confederate flag gets exactly what he/she wanted, while the LGBTQ community is relegated again to the shadows of campus culture.”
Feinstein may or may not be right about the motives of the Confederate flag-hanger; rather than aiming to have all the flags removed, he or she may have simply wanted to express an opinion as well. But it’s also important to note that if the school responded differently to the Confederate flag than it did to the rainbow flags, that would also constitute viewpoint discrimination, again contradicting Davidson’s promise of “unfettered inquiry.” And it’s a telling sign of the environment for free expression at Davidson that Feinstein assumes that the administration would immediately turn to viewpoint-based censorship in response to a Confederate flag. Hopefully, Davidson will do the right thing and allow each of the flags to fly.
Dean of Students Thomas Shandley provided a written statement to The Huffington Post, saying that although Davidson encourages students to “convey their values and spirit” within their dorm rooms, the school has “a long-standing practice of no display of banners, flags, or signs on the exterior of the residence halls.” If this is such a “long-standing practice,” we wonder why it wasn’t codified in official school policies. But a better outcome would be for Davidson to encourage students to “convey their values and spirit” in public, where they can be seen by their fellow students. A flag-friendly policy would contribute to, rather than restrict, a marketplace of ideas on campus.
FIRE will monitor the case for updates.
Image: Davidson College students fly rainbow pride flags from the windows of the school's New Hall dorm in a show of support for gay student Max Feinstein - The Huffington Post
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...