FIU finds itself in the middle of three student-speech controversies.
Racist Chat Group:
I mentioned this one: Three students (including a 3L) said racist, sexist, antisemitic, and other offensive crap in an off-campus group chat. The university suspended two of them for two years–one for making “verbal or written abuse, threats, intimidation and/or coercion that objectively endangers the health, safety or well-being of others” in violation of the student code of conduct1 and the 3L (who set-up the group chat) for “affirmative act which aids, attempts, promotes, conceals, or facilitates” those violations. The third student’s disciplinary proceeding is pending.
Meanwhile, SD Fla Chief Judge Altanaga abstained from their § 1983 action under Younger, concluding that a university disciplinary proceeding qualifies as a civil enforcement proceeding akin to a criminal action. I think this is right–hard to see a difference between a university enforcing its codes and, e.g., a State Bar enforcing PR regulations. Although given the increasing frequency with which public universities sanction students for expressive conduct, this has the potential to remove a large swath of First Amendment cases from federal court.
Interestingly, the University of Florida did not raise Younger in defending a lawsuit challenging its suspension and investigation of a law student for similarly racist off-campus speech (and, indirectly, a controversial seminar paper). The district court preliminarily enjoined the university from continuing the suspension, although the Eleventh Circuit stayed the injunction pending appeal. The parties have briefed the appeal (without mentioning Younger) and I believe oral argument is upcoming. Perhaps because Damsky sued and got the PI immediately after he was suspended and barred from campus, before any disciplinary proceedings began.
Threats
FIU Police arrested a student in April for making threats when she joked in a What’sApp chat on the eve of a student capstone program, “Netanyahu, if you can hear me, drop some bonbons for us capstone students in Ocean Bank Convention Center.” A state court judge set bond at $ 5000 and indicated she viewed this t as an attempted threat that an objective person would not find to be a joke (even if the student believed she was joking). Given the Netanyahu reference (which apes Trump’s call to Russia in 2o16), it is hard to conclude that the student or a reasonable listener would take this as a true threat and not a joke. The student’s public defender is teeing up First Amendment arguments and FIRE weighed in with a letter to the university that fell on deaf ears.
Protests
Several students are under university investigation over a silent protest over FIU’s agreement with ICE. They allegedly violated conduct policies by protesting indoors (even silently and non-disruptively) and for refusing to produce ID upon request.
I continue to believe that the speech in the first two cases is protected–none of this can reasonably be understood or intended as a true threat or targeted harassment; it is racist and stupid but not unprotected. The process to that conclusion will take longer than we perhaps would like. As for the third, the university reg (no indoor protests) is content-neutral, although it again reveals the naked insincerity behind “don’t ignore or refuse to listen to speakers you do not like, listen to them and push back,” when even non-disruptive pushback is punished.
- And for driving under the influence and smoking pot, although not clear how that plays into the group chat. ↩︎