In a reversal highlighting the need for colleges to refrain from haphazardly disciplining students for private speech, the University of Central Florida walked back its suspension of a student who tweeted a picture of his ex-girlfriend’s apology letter. UCF student Nick Lutz had copy edited the letter in red pen and graded it a “D-.”
When your ex writes you an apology letter so you grade it to send it back pic.twitter.com/MczdjcCiil
— Nick Lutz (@NickLutz12) February 17, 2017
In July, UCF suspended Lutz for allegedly violating “state and federal law,” as well as other provisions of the UCF Student Handbook. Back in February, Lutz posted a picture of a marked-up version of a breakup apology letter from his ex-girlfriend on Twitter: He had taken a red pen to the text, making edits on spelling and grammar mistakes, commenting on the content, and grading the letter. As of press time, Lutz’s tweet had received more than 300,000 likes and had been retweeted more than 120,000 times.
In the months following, Lutz’s ex-girlfriend, who is not clearly identified in the letter and is not a UCF student, filed a cyberbullying report with the local sheriff’s office. She claimed Lutz’s actions and the comments from other Twitter users caused her “substantial emotional distress.” The state attorney declined to prosecute the case. FIRE has confirmed that the state indicated that there was insufficient evidence to prove guilt beyond a reasonable doubt.
Despite the state attorney’s decision not to prosecute, a disciplinary panel at UCF found Lutz had violated university policy, specifically the Student Handbook’s prohibition against any “Violation of Local, State and/or Federal Laws of the ‘Rules of Conduct.’” The panel found that Lutz “may” have violated laws in posting the tweet and suspended him for the summer and fall semesters. He was also placed on disciplinary probation.
After Lutz appealed, UCF informed him that he had been found responsible for violating two other Student Code provisions that he had never been notified he was charged under: “Disruptive Conduct” and “Harmful Behavior.”
UCF, which earns a “red light” rating from FIRE for maintaining a speech code that “clearly and substantially” restricts freedom of expression, also retained the original suspension and probation sanctions.
With Lutz’s appeal still pending, he shared news of his suspension with the local media and on Twitter.
In multiple interviews, Ari Cohn, director of FIRE’s Individual Rights Defense Program, highlighted that UCF appeared to be taking jurisdiction where they had none: Lutz’s speech occurred on social media and had no university connection — the complainant was not even a student at UCF.
“Is it really the university’s business to police student speech no matter where it’s made?,” Ari asked in an interview with Buzzfeed. Ari also noted that Lutz’s tweet did not constitute harassment and was fully protected under the First Amendment.
Thanks to the resourcefulness of Lutz’s attorney in sharing the news of UCF’s misguided actions, and the media attention that followed, the school reversed the charges on July 19.
UCF is a public university legally bound by the Constitution — which includes the rights to free speech and due process. While it is laudable that the administration eventually realized that it must uphold the constitutional rights of Lutz and other students, UCF’s initial actions are deeply troubling.
In addition to the fact that Lutz’s tweet was fully protected by the First Amendment, UCF’s disciplinary action against him poses numerous other problems. The first charge against Lutz, for allegedly violating a state law, should never have been imposed in the first place. Such conduct code provisions are appropriately utilized when a student is found guilty of violating the law in a court, but are inappropriate where no such determination has been made.
Campus adjudicators are not necessarily legal experts and rarely have the expertise to judge when a law has been broken. And the decision to adjudicate such claims in a campus tribunal poses a serious risk to students. There is generally no right against self-incrimination in a campus hearing, and anything a student says in the course of the disciplinary process is subject to being used against them in a later criminal prosecution. It is fundamentally unfair for a campus tribunal to overstep its authority and assert the right to independently adjudicate violations of state law.
Still more problematic from a due process perspective is UCF’s imposition of new conduct code violations after the disciplinary hearing. Lutz was never notified that he was being charged with Disruptive Conduct and Harmful Behavior, and never had a chance to respond to those allegations. Rather, UCF found him responsible for these new charges only after Lutz filed his appeal. An essential component of procedural due process is the right to be notified of the charges and be given an opportunity to respond to them. That right is no less important in student disciplinary cases.
The Supreme Court has held since 1975 that in cases where a student faces even a short suspension, they must “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”
Unable to wield the original “violation of law” charge against Lutz, the university resorted to two other provisions to support disciplining him. That, the administration realized, was an error. “Upon review, it appears that the conduct charge on disruptive behavior was improvidently levied,” according to a letter to Lutz from UCF’s Associate Vice President and Dean of Students, Adrienne Otto Frame. “It is determined that there were irregularities that could have affected the outcome of the hearing.”
As colleges and universities confront the issue of whether, and how, to respond to student social media activity, FIRE has noticed an unsettling trend of administrators reacting inappropriately to online student speech.
For example, in 2015, a student at Texas Christian University was suspended for constitutionally protected commentary he posted to his personal Facebook and Twitter profiles. The school levied the suspension after another Facebook user — notably not a student at TCU — took screenshots of the student’s accounts, posted them on her Tumblr page, and labeled the student a “racist.” In a letter to TCU, FIRE called for the reversal of the student’s suspension, writing, “If students must fear disciplinary action for offending any person, at any time, in any place, they will reasonably decide that it is safer to remain silent rather than discuss important issues, to the detriment of their own development and education as well as the TCU community.”
In 2016, a student at Colorado College was similarly suspended for an anonymous joke he posted to the social media app Yik Yak. FIRE intervened and was able to get the student’s suspension reduced from two years to six months. However, FIRE noted in a letter to the school’s Board of Trustees that the lightened suspension did not end the matter, and that such punishment for speech on social media violated the student’s free speech rights promised by the university. Both TCU and Colorado College are private institutions and had promised students freedom of speech, a commitment they clearly disregarded in these cases.
Ari says these developments should serve as a warning for colleges and universities who might be tempted to unduly monitor students’ private online speech.
“Administrators must be doubly careful when reacting to social media posts by students,” Ari said.
“When student expression has no meaningful connection to campus, administrators should not be assessing it in a disciplinary context,” he added. “Even when student expression does have a connection to the campus community, administrators may not label it as misconduct when it is protected by the First Amendment.”
FIRE is pleased to see that UCF realized that it violated Lutz’s rights, and hopes that administrators will be more circumspect in the future when responding to complaints about students’ constitutionally protected social media activity.