On Monday, the Michigan State University (MSU) student newspaper The State News published an article about the school’s Student Accountability in Community (SAC) program. The article, which details some of FIRE’s concerns about the program’s constitutionality, includes distressing quotes from MSU President Lou Anna K. Simon:
“You don’t get into the program because you choose to; you’ve gotten there because you’ve been found guilty of something,” she said. “It’s sort of like when you go to an alcohol diversion program. You don’t have a First Amendment right to control the content of your alcohol diversion program.”
“You don’t have a set of rights to control what kinds of community service you do necessarily.”
Unfortunately for MSU students, these quotes demonstrate not only that President Simon is deeply misinformed about exactly how the First Amendment works in relation to public universities like MSU, but also that President Simon doesn’t really understand how the SAC program works, either.
First, let’s tackle the First Amendment. Put simply, the First Amendment protects citizens from being punished for speech by the government or its agents. As a public university, funded by taxpayer dollars, Michigan State University is certainly a government actor, and thus bound by the First Amendment. Therefore, Michigan State cannot constitutionally punish students for engaging in protected speech.
Now as clear as that constitutional prohibition is, the SAC program ignores it. According to SAC program materials, examples of “situations that would generally be appropriate for SAC” include “[h]umiliating a boyfriend or girlfriend,” “disrespecting other students’ academic freedom,” “[i]nsulting instructors or teaching assistants,” and “making sexist, homophobic, or racist remarks at a meeting.” Whether or not this kind of speech is admirable, polite, or desirable is completely immaterial. The point is that these examples are clearly protected by the First Amendment, and until the Constitution is amended otherwise, such instances of protected speech have absolutely no business being grounds for a mandatory SAC referral. Because a mandatory referral to the SAC program means that a student’s registration is put on hold until the student has paid a fifty-dollar fee, a student who refuses to participate in the program is effectively expelled. If that isn’t punishment for engaging in protected speech, I don’t know what is. (Check out Greg’s column from last Wednesday’s The Detroit News for more on precisely how the SAC program violates constitutional rights.)
Now on to the real heart of the matter here, which is President Simon’s misleading characterization of the SAC program. First, President Simon makes clear that the SAC program is punitive: “You don’t get into the program because you choose to; you’ve gotten there because you’ve been found guilty of something,” she says. Found guilty of what? Yelling an insult? Getting into a heated political debate? It is chilling to see how easily Simon skips past the constitutional problems raised by classifying protected speech as something a student could fairly “be[ ] found guilty of” at a public university in the United States.
Next—and here’s where Simon really demonstrates her ignorance of the SAC program—she says that being forced to attend the program is “sort of like when you go to an alcohol diversion program” because “[y]ou don’t have a First Amendment right to control the content of your alcohol diversion program. You don’t have a set of rights to control what kinds of community service you do necessarily.” President Simon couldn’t be more wrong. First, the SAC program is absolutely nothing like an alcohol diversion program. One only gets sent to an alcohol diversion program for committing an alcohol-related offense (such as underage drinking or public drunkenness), which is something the university has the right to regulate and punish. By contrast, one can be sent to SAC for engaging in constitutionally protected speech—something the university has no right to regulate and punish.
Moreover, President Simon’s statement isn’t even accurate with regard to an alcohol diversion program run by the government or a public university. Even in an alcohol diversion program, you have the right to freedom of conscience. If an alcohol diversion program at a state university forced a student to state that he believed, for example, that drinking was wrong or that prohibition should be re-instated, that would unquestionably be a violation of that student’s right to freedom of conscience. The SAC program, however, requires students to “explain” what they did wrong in a way that the program leader deems “acceptable.” As Greg described in his Detroit News column:
Students sentenced to SAC training are required to attend four sessions with a campus administrator acting as counselor where they learn to speak “correctly” about whatever alleged wrong they had committed. During training, students are required to answer a series of questions. Students must confess their understanding of the incident, but the SAC training materials make it clear that the student’s perception of what he or she did wrong is almost always incomplete... If the offense is being rude to a dorm receptionist, the student cannot simply state he or she should have been more polite. Rather, the correct response is “I feel entitled to be in the residence hall and that’s wrong…” The SAC sessions continue, with the student repeatedly being told the “right” way to feel and talk.
One would hope that it would be obvious that public universities should not be compelling student speech. To do so, as the SAC program does, is to violate a student’s freedom of conscience, a right clearly affirmed by the Supreme Court way back in 1943 in West Virginia State Board of Education v. Barnette.
President Simon’s comments about the SAC program are based on fundamental misunderstandings of the First Amendment. As the leader of a public university bound by that amendment, she should consider brushing up on it before making public misstatements. (President Simon, if you’re reading this, we’d be happy to send you a free copy of FIRE’s Guide to First-Year Orientation and Thought Reform on Campus.)
University of Pennsylvania President Liz Magill and board chair Scott Bok announced their resignations after McGill said the university should back away from its traditional protection of speech.
Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.
Frederick Douglass argued that freedom of speech was essential in maintaining one’s liberty. In the minds of Douglass and other abolitionists, the free exchange of ideas produced greater political freedom.
Special guest post by Stephen Rohde on the string of controversies regarding free speech and anti-Semitism on college campuses.