Resolution at Barry University After Student Wrongfully Suspended for Recording Meetings

May 8, 2015

As we see too often at FIRE, exposing your own college’s embarrassing acts can result in a laundry list of disciplinary charges even when no technical offense has been committed. One student at Florida’s Barry University experienced this very phenomenon recently, after she recorded an interaction with college officials in which they appeared to have few problems with the formation of a hypothetical student organization with the mission of supporting the Islamic State, more commonly known as ISIS.

Laura, the Barry student in question (who asked that we not use her full name), was working with the organization Project Veritas, whose self-described mission is to “[i]nvestigate and expose corruption, dishonesty … and other misconduct in both public and private institutions.”

The recording was part of a recent campaign by the organization that aims to bring attention to alleged sympathies for ISIS within university administrations. Project Veritas has made similar recordings at Cornell University and on a number of California campuses. (FIRE takes no position on the conclusions Project Veritas draws from the recordings.)

While other universities seem to have taken Project Veritas’s recordings in stride, Barry threw the book at Laura, charging her with “Falsification,” “Collusion,” “Disruptive Behavior,” “Violations of Law,” “Hostile Environment,” and “Threatening Behaviors.” It also placed her on interim suspension—a serious sanction best deployed only in extreme circumstances, such as when the safety of the community is at risk. If this seems like serious overkill to you given Laura’s actual actions (namely, the recording of the interactions with administrators, which Project Veritas later released), you’re right. As we wrote to Barry on April 14:

[I]t appears that Barry is inappropriately attempting to hold [Laura] accountable for the larger reaction to Project Veritas’s video. But the only act [Laura] is alleged to have herself committed is recording her interaction with various Barry University staff members. The simple act of recording a video could not and apparently did not cause a disruption, create a hostile environment, or threaten anyone with harm, as proven by the fact that no charges were brought against [Laura] until several days after Project Veritas published its video. Fundamental fairness requires that Barry impose sanctions on its students only for acts that they have themselves committed.

Torch readers can read our letter in full for more detailed arguments showing why the numerous charges against the student don’t withstand scrutiny. Worth particular mention here, however, is the university’s “Violations of Law” charge—a charge presumably based on Laura’s actions in the face of a state statute concerning unlawful recordings of private conversations. One of the administrators heard on the recordings, in fact, filed a criminal complaint pursuant to this statute. Whether the student’s recordings should be implicated under this state statute is hardly clear, though, as we noted in our letter:

FIRE has serious concerns about the “Violation of Law” charge against [Laura] and, more generally, about the appropriateness of universities adjudicating potential violation of criminal statutes. FIRE presumes that this charge is based on Fla. Stat. § 934.03, prohibiting the interception and disclosure of oral communications—the same statute underlying the criminal complaint filed against [Laura]. Whether particular communications fall under the ambit of this statute depends on whether they are made by a party “exhibiting an expectation of privacy under such circumstances reasonably justifying such an exception.” State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985) (emphasis in original). This inquiry is “intensely fact-specific,” Migut v. Flynn, 131 F. App’x 262, 267 (11th Cir. 2005), and Florida courts have expressed doubts that a reasonable expectation of privacy inures in one’s place of business. See Cohen Brothers, LLC v. ME Corp., S.A., 872 So. 2d 231 (Fla. 3d 2004) (holding that society would not recognize a reasonable expectation of privacy in the context of a conference call held to conduct the business of a company).

If you wanted to boil the previous paragraph down to two words they’d be these: It’s complicated. So what chance does a university with none of the resources, expertise, or authorities of a court of law have in adjudicating this correctly? Colleges frequently punish students under their codes of conduct after they are found guilty of criminal offenses. But that is a far cry from the situation at Barry, where Laura found herself accused of violating state law, the boundaries of which are not clear-cut, when the state courts themselves haven’t made up their minds on the issue. (Indeed, to the best of FIRE’s knowledge, law enforcement either declined to file charges or else the complaint was withdrawn.) This is at best a gravely flawed approach, and at worst a grossly self-serving one. That’s why we wrote:

As should be obvious, Barry University lacks the requisite procedures, resources, and expertise to undertake this analysis, which is properly the purview of a court of law. It is fundamentally unfair to force a student to choose between mounting a thorough and complete defense to campus disciplinary charges or remaining silent for fear that any statements made in so doing could be used in a future criminal prosecution. Students who are convicted of violating the law may reasonably be punished under the conduct code. But it is unconscionable for the university to assert jurisdiction over criminal matters and place the accused student in such a manifestly unfair and untenable position.

We argued much the same recently at The George Washington University, which suspended a Jewish student for displaying a Hindu swastika, charged the student with “Violation of Law,” and reported the student to Washington, D.C.’s police department for investigation as a “hate crime.”

Fortunately for Laura, with the help of an attorney, a settlement was reached between her and the university, ensuring that she will graduate on time. While FIRE isn’t privy to the final details of their arrangement, we’re pleased that the slew of inappropriate charges lodged against her haven’t hindered her ability to graduate. This should serve as a reminder to Barry and other universities that student conduct actions that appear to be based solely on the principle of “you mess with the bull, you get the horns” are rarely compatible with the norms of due process.