Tom Cruise works as a PreCrime agent in Minority Report. Thankfully, no universities have implemented this department on campus.
Recently, FIRE successfully defended the rights of the now-recognized Johns Hopkins University student group Voice for Life (VFL). As Torch readers may recall, VFL was wrongly denied recognition in March due in part to student government leaders’ personal disagreements with VFL’s viewpoint and activities. Members of Johns Hopkins’ Student Government Association (SGA) also claimed incorrectly that the group’s planned "sidewalk counseling" activities violated Johns Hopkins’ harassment policies—a position the university’s Office of Institutional Equity rejected. Fortunately, the SGA’s judiciary committee unanimously overturned the rejection, granting the group recognized status.
As Hopkins’ News-Letter student newspaper reports, this sequence of events has inspired the formation of an opposing group, calling themselves Voice for Choice (VFC). This is all to the good, right? What isn’t there to admire from a free speech perspective about one group inspiring the formation of another group to provide a different, opposing message? The answer to speech you don’t like, as FIRE always says, is more speech.
Unfortunately, the News-Letter‘s report presents some cause for concern.
The ultimate goal of the movement is to eliminate harassment on campus. Voice for Choice takes issue with Voice for Life’s club activities, including sidewalk counseling and approaching pregnant women.
"The problem is not that they want to express their views, but that they want to use harassing tactics," [VFC member Caitlin] Fuchs-Rosner said. "The tactics they want to use could be triggering for rape victims, but the administration did not do anything about that."
She believes that Voice for Life’s activities will harass legally protected classes of people — women and pregnant women.
VFC’s Facebook page goes even further than that, stating that VFC "will be circulating a petition online and on campus to garner student/alum support for an official harassment complaint."
This, of course, is deeply troubling. For one, VFL’s "sidewalk counseling"—the lawful engagement of persons outside of (and often at some distance from) facilities that perform abortions—is not unprotected harassment. Vice Provost for Institutional Equity Caroline Laguerre-Brown made this clear in her April 3 letter, in which she found that this activity "would not constitute harassment within the meaning of" Johns Hopkins’ harassment policies. Further, she stated that this type of speech was "fully in accord with the university’s robust commitment to the values of free expression and open debate."
Second, gathering signatures for a generalized complaint of harassment regarding activities that are at this point purely hypothetical—to be clear, they have not happened yet—is simply not how harassment investigations work. Neither Johns Hopkins nor any other school I know of has a Department of PreCrime. Specific instances of harassing behavior must be alleged and investigated on a case-by-case basis. Preemptively declaring acts of speech to be unprotected harassment before anyone has said a word, as VFC seems to want Hopkins to do, will turn the university’s disciplinary system into a farce. If Hopkins receives such a complaint, it must reject it if logic and reality are to have any meaning. VFC, or any other group, is free to call other students’ speech harassment even when it clearly isn’t. But VFC’s insistence that this position should be enshrined in policy at Hopkins is troublesome.
The News-Letter‘s reporting on VFC raises other concerns as well, such as its allegation that the Johns Hopkins administration "coerced" the student judiciary committee into recognizing VFL:
"We believe the school was facing legal pressure and financial pressure. The University administration stepped on women, completely disregarded this legally protected group of people because of financial concern," Fuchs-Rosner said. "We believe that certain members of the administration coerced the Judiciary to vote in favor of Voice for Life."
I’ve seen no evidence that this is true. But, for the sake of argument, let’s hypothesize about this scenario at a public university, where the student government is responsible both for recognizing student organizations and for distributing funds to organizations collected from mandatory student activity fees. The Supreme Court has ruled that recognition, funding, and access to campus resources must be managed in a viewpoint-neutral fashion, and student governments have an obligation to protect the First Amendment. In Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 233 (2000), for instance, the Court declared that "When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others." When student governments fail to fulfill such obligations, it is the university’s job to step in and make sure that they do. Otherwise, public universities risk potential legal liability for the unconstitutional acts of the student government to which they had delegated authority. If that means a particularly intransigent student government has to be "coerced" into following the First Amendment, as it is legally obligated to do, then so be it.
Johns Hopkins is private and not bound by the First Amendment, but it does make clear promises of free speech and has a system for recognizing and funding student organizations that appears very similar to that of the hypothetical public university I just described. A strong moral argument, at the least, can be made that Johns Hopkins has a similar obligation to step in when necessary to ensure that groups get equal protection (although again, I have seen no evidence that it did so here). That’s not a sign of corruption or ill intent. That’s the system working as it should.
While Johns Hopkins and its student government should take into account the concerns raised here, it also must give Voice for Choice a fair shot at recognition if the group applies for it, making sure that it is not improperly rejected on viewpoint-based grounds as VFL was. Laudably, despite the accusations thrown at his group, VFL president Andrew Guernsey is saying he welcomes the opportunity to engage VFC, telling the News-Letter, "We look forward to a discussion and a dialogue between both sides of the abortion issue. We definitely support the right to exist of a pro-choice group on campus."
There’s no question that there is room for both pro-choice and pro-life groups at Johns Hopkins. But student groups must not be allowed to abuse university harassment policies to force others out of the marketplace of ideas. We’ll be watching to make sure that doesn’t happen here.