Under Investigation for Criticizing Roe Decision

As Americans across the country continue to react to the Supreme Court’s decision to overturn Roe v. Wade, eight law students at American University are under investigation for criticizing in a private group chat the draft opinion of the abortion ruling leaked last month.

Another student filed a harassment complaint against the chat group, arguing that their comments amounted to discrimination against him for his religious and antiabortion beliefs.

The Foundation for Individual Rights and Expression shared the log of the chat on its website, highlighting the comments of the eight unidentified students accused of harassment in yellow and the complainant’s messages in blue.

“I blame James Comey and that stupid fucking letter he sent in 2016,” wrote one student who opposed the ruling, referring to the letter the former FBI director sent to Congress two weeks before the 2016 presidential election saying the bureau would investigate additional emails from Hillary Clinton. Many Democrats believe that move paved the way for Donald Trump to win the White House—and appoint three conservative justices to the Supreme Court.

“What are they going to go after next? … Griswold, Obergefell, Loving?” the same student added, naming other Supreme Court decisions protecting contraceptive use and the rights of same-sex and interracial couples to marry.

The complainant responded, “James Comey is a patriot who served his country as the Director of the FBI. Also as a Republican, I find it insulting that conservatives would be thought of as overturning people’s civil rights like Obergefell or Loving.”

A different student responded, “Can we shut the fuck up about personal opinions while people process this?” Another student sent an Instagram screenshot to the chat about a protest at the Supreme Court, which had a caption that read “abortion bans are class warfare.”

The complainant then wrote, “Everyone is entitled to their opinion and you all are more than welcome to protest. I find it interesting how the call to silence our personal opinions happens after I defended my deeply-held religious beliefs and yet nobody has mentioned that same sentiment about the pro-abortion posts. I was raised to stand up for my values, so baseless claims that abortion bans are ‘class warfare’ is deeply offensive to both me and my Greek Orthodox faith.”

“There was a request for info about abortion protests. No one asked for your personal opinion,” read a student’s response. “If you don’t have the decency to shut up while people come to terms with the fact that they’ve just lost a constitutional right then that says a lot about you.”

Another student wrote, “This issue of abortion does NOT impact you in the least bit because you live in (I am assuming) a male body that is not the one being regulated. So STOP MAKING THIS ABOUT YOU and what YOUR BELIEFS are, cause it’s not. It’s bigger than you and your opinions.”

On May 25, American University’s Office of Equity & Title IX notified eight students who participated in the group chat that they were under investigation for violating the university’s discrimination and non–Title IX sexual misconduct policy, which prohibits any form of discriminatory harassment.

“[The complainant] has alleged that during the week of May 2, 2022, Respondents subjected [the complainant] to Harassment on the basis of political affiliation and religious beliefs,” the notice from American University read. “Specifically, Complainant alleges that Respondents sent him harassing and threatening messages through the GroupMe social media platform due to his political affiliation and religious beliefs and that his receipt of these messages unreasonably interfered with his educational experience. [The student] identifies as Greek Orthodox Christian and Republican/Moderate-Conservative.”

One of the law students under investigation, Daniel Brezina, spoke with FIRE about his dismay over the investigation; the other seven have not been identified and are not working with FIRE to publicize the case.

In an interview with Inside Higher Ed, Brezina declined to say which comments he contributed to the group chat, but he noted that most of the students in the chat shared similar sentiments about conservatives on the Supreme Court.

“I was disappointed that they were investigating,” Brezina said. “I mean, it’s just speech. There was certainly no harassment. And I was just disappointed that the school had come to this point.”

Brezina said he wishes the university would drop the investigation and that American would have conducted an informal investigation or prescreened the group chat before starting a formal investigation. He added that the messages didn’t threaten the complainant.

“If perhaps there was something really threatening, they might want to investigate, but it’s just a strong disagreement about abortion access and the impact of the Supreme Court,” Brezina said.

Stifling Student Speech

Brezina is not worried about the impact of the investigation on his career, but FIRE’s Alex Morey, director of the Individual Rights Defense Program, said an investigation like that could cause lasting damage, potentially creating a barrier for the law students when they apply to the bar.

“Even if the investigation goes nowhere, [it] could theoretically hold them back from future employment or create additional barriers to them getting barred,” Morey said. “So this is not ‘just an investigation,’ this is a big deal that impacts the ability of these students—most of them are women and women of color, by the way, who have traditionally had less access to these kinds of careers.”

Morey said the investigation sets a precedent that could deter other students from speaking out.

“What does this tell other law students who want to have these kinds of passionate discussions about constitutional law at American Law?” Morey said. “If they do [speak up] and offend somebody, they might get brought up on harassment and discrimination charges and tank their future as a lawyer.”

Morey added that this type of investigation is common in higher education, even though many private institutions like American have “First Amendment–esque” policies that protect students’ speech. American University’s freedom of expression and dissent policy “defends the right to free expression, including the freedom to express dissent, within the context of the law and responsibility for one’s actions.”

“When [private] schools don’t deliver on that [free speech] promise, FIRE has a huge problem with that, because they are attracting these top-caliber students and faculty,” Morey said.

She added that the precedent is especially troubling given the Supreme Court’s ruling Friday ending federal protection of abortion rights.

“Roe v. Wade and the Dobbs v. Jackson decision is the issue of the day in this country,” Morey said. “And it certainly is going to be the issue of the day at American Law. It’s the biggest, most important legal news right now, and students at American Law should be able to talk about it in a passionate, unfiltered way, as part of their education. And to the extent that American might be censoring that discussion, it’s an absolute abomination.”

Asked to comment on the investigation, an American University spokesperson wrote via email that the Family Educational Rights and Privacy Act prohibits comment on investigations involving students.

“American University is guided by its commitment to the right to free expression, including the freedom to express dissent within the context of the law and responsibility for one’s actions,” the spokesperson wrote. “The University’s Student Conduct Code is designed to support a safe, honest, and inclusive community with a shared commitment to acting with mutual respect and by forming the highest standards of ethics and morals among its members.”

Brezina said the investigation has made him reconsider the opinions he shares with other students.

“It’s going to make me think twice about speaking out on various issues,” Brezina said. “I’m going be a little more cautious about what I say, for fear that somebody is going to accuse me of targeting [them], whether it’s conservative or some sort of other ideological line. I might be a little more cautious now just because I don’t want to go through the process again.”