No Consistent Sanctions for Silencing

Colleges and universities aren’t eager to punish students who shout down speakers, but they must follow their own policies and foster an environment conducive to free speech, experts say.

November 22, 2017
University of Oregon students protest the president last month.

One member of a student group that disrupted the University of Oregon president’s State of the University address last month has been punished.

The student -- Charlie Landeros -- has been assigned an essay.

Landeros, who prefers the pronouns they and them, also has had a letter reprimanding them added to their record.

But those consequences pale compared to those levied on students found guilty of the same offense one state over, at California's Claremont McKenna College. There, five students were suspended -- three of them for a year -- for shouting down the controversial conservative figure Heather Mac Donald.

The penalties for students who interrupt speakers vary drastically among institutions, in part because each case is so specific, but also because campus leaders remain reluctant and a little unsure of how hard to come down on these protesters, experts say.

Campus officials prefer to educate rather than punish students, especially when the students are engaging in a fundamental and long-standing tradition of higher education -- exercising free speech, albeit in an imprudent way. Administrators increasingly must respond to lawmakers and other outside forces to more harshly discipline these students.

“I don’t think campuses are anxious to adjudicate student protesters, but they’re feeling under the gun to create environments where speech can occur,” said Kevin Kruger, president of NASPA: Student Affairs Administrators in Higher Education.

Early examples of protests gone awry demonstrate institutions’ unfamiliarity with handling such events. Notably, at Middlebury College in early March, a visit by the divisive scholar Charles Murray devolved from a shouting down into violence -- a total of 74 students were punished. Even then, most received probation and none were suspended, as at Claremont McKenna.

Middlebury, whose representatives did not respond to repeated requests for comment for this article, have refused to disclose details about the penalties, which it labeled “official college discipline.” An earlier statement from the college said the more serious “college discipline” was a notice placed in students' records that they are sometimes required to disclose to potential graduate programs and employers.

Administrators have been disinclined to discipline students for shutting down speakers, though in interviews experts characterized this hesitancy in different ways.

Ari Cohn, from the Foundation for Individual Rights in Education, said that administrators recognized that penalizing students was an “unpopular political move,” but that that tendency showed students they could escape punishments. Cohn is director of the individual rights defense program at FIRE, a civil rights watchdog group.

Now, college leaders are “flailing” as they try to clamp down on a problem they helped create, Cohn said. Students across the country have tuned in to social media and can observe campus protests, which will spawn others, he said.

But such demonstrations are cyclical and not nascent on college campuses, said Jill Creighton, president of the Association for Student Conduct Administration. While higher education hasn’t often grappled with speakers being shouted down in the last decade, 30 years ago it did, she said.

Conduct officials never approach cases with a punitive lens, but rather they try to “repair” behavior, Creighton said -- so colleges punish only as a last resort.

“We’ve really seen civil rights concerns as a part of our profession since the beginning; it’s iterative -- it comes around in different forms,” she said.

At the University of Oregon, which failed to provide a comment for this article, students were initially extended a deal in which their student conduct violations could be wiped away simply by meeting with administrators.

Members of one student group, the University of Oregon Student Collective, which organized the protest against the president, refused. The Student Collective, described by Landeros in an interview, has called for the administration to make the institution more accessible to and safe for marginalized students. Landeros cited a proliferation of white nationalist propaganda on campus, which they said can lead to violence.

Landeros, a founding member of the Student Collective, met behind closed doors with an administrator recently and argued that the group did not disrupt the university environment. The university can’t function without students and thus the collective’s protest was more “university business” than the president’s speech, Landeros argued.

“A speech by an executive administrator is not essential to a school,” they said.

The university also told Landeros that the group had ignored an order to end the protest. Landeros did not dispute that in the interview, but said that the members were being told to be “less effective” in their protest, rendering the demand to stop as unreasonable.

They intend to appeal the punishment. The Student Collective also introduced a resolution to the University of Oregon Senate asking the Senate to call for dropping the conduct violations against the protesters.

President Michael H. Schill, in an opinion piece in The New York Times, likened the language used by one protester to fascism, which the students had accused him of promoting. Schill said the use of the term to describe him and the institution offended him, because members of his extended family were thrown into concentration campus and murdered in the Holocaust.

Schill wrote that he respected the right to protest, but not the silencing of others.

“From what I can tell, much of what students are protesting, both at the University of Oregon and elsewhere, is the expression of viewpoints or ideologies that offend them and make them feel marginalized. They are fed up with what they see as a blanket protection of free speech that, at its extreme, permits the expression of views by neo-Nazis and white supremacists. I am opposed to all these groups stand for, but offensive speech can never be the sole criterion for shutting down a speaker.”

Officials do not want to “criminalize” this behavior, but they do want to prevent free speech from being restricted, said Kruger of NASPA. He described a scenario: What if right-wing speakers, the kind college students have typically tried to block, were excluded from campus? That could lead to someone discussing sexual or reproductive health also being drowned out, simply because someone in the audience was insulted.

Lawmakers and university systems have stepped in to address this, either legislatively or through policy, sometimes to the chagrin of campus officials. Alumni and the “greater community” of these colleges also pressure the institutions to act, Kruger said.

The University of Wisconsin System Board of Regents, for instance, approved a policy last month mandating that students who disrupt protests be suspended if they do it twice, and after three times, expelled. Legislation had been floated in Wisconsin that would have forced similar punishments.

Both NASPA and FIRE oppose such minimum sentencing, because it does not permit officials to consider context.

“This has always been the purview of colleges and universities to manage their own disciplinary matters,” Kruger said. “This doesn’t account for nuance at individual institutions.”

Also among the more recent incidents were students at the College of William & Mary associated with the Black Lives Matter movement interrupting the speech of Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union’s Virginia chapter.

The protesters accused the ACLU of protecting white supremacists, linked to the ACLU's backing a white nationalist's lawsuit against the city of Charlottesville, Va., related to their right to hold a protest in August, which ultimately turned violent.

Those students violated the William & Mary conduct code, the institution confirmed, but it would not disclose if the students would face consequences. Spokesman Brian Whitson, citing federal privacy laws, again refused to discuss possible sanctions for this article.

Whitson said via email that the institution intends to work more closely with event organizers in advance of an event that might be protested. The college had practices for large and high-profile events before, but Whitson said it is formalizing this planning process for all events.

"Candidly, we were not expecting a protest like we had during the student event on Sept. 27, and we want to do everything we can to prevent that from happening again," Whitson wrote in his email.

William & Mary President Taylor Reveley published a statement in October that touched on the First Amendment and the student protest of ACLU.

"This is my 20th year at William & Mary. Along the way I have come to know our magnificent institution very well. Among its myriad virtues, one that I've especially cherished is the civility and mutual respect with which we wage our disagreements, even when they are passionately felt. This way of living and working together has served us well. Let's not lose it."


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