What are the bounds of student speech on social media?
Local Tucson protester holding up a sign with the words "#Black Lives Matter!" written on it.
In the past few weeks, the University of Arizona community has been made aware of racist social media posts from incoming and current students. The university’s response has consistently been to educate these individuals, rather than exclude them from the community, so that they may learn better.
Provost Liesl Folks released a general statement regarding racist actions by incoming and current UA students. In the statement, the provost explained that the general response to these incidents is to educate these students.
“The very experience of shared learning within our nation’s universities is a powerful way to dismantle ignorance, increase compassion, and reduce cruelty towards others who are different from us," Folks said in her statement. "For this reason, I believe we must continue to operate a "big-tent" institution, allowing all students a chance to learn and mature, to grow their intellectual abilities, to develop a working knowledge of history, of cultures and of the workings of democracy, with the words from the preamble to the Constitution as a lodestar, to "form a more perfect Union … insure domestic Tranquility … (and) promote the general Welfare.""
Not all students feel comfortable with this idea.
Naya Ibrahim, a senior majoring in neuroscience and cognitive science, created a petition to revoke the admission and scholarship of an incoming student who made a racially insensitive tweet. She spoke to the Daily Wildcat about why it was important that the university take this action.
“Earlier last fall a student who was African-American was beat up by two juniors I believe who were white. … If we are not able to understand that people are capable of coming to our school that feel entitled to cause harm to other individuals and if we are not going to teach the ones that are incoming that this is unacceptable, do we have a safe environment?” Ibrahim asked.
Though the university has already stated its intentions regarding students who have made racist social media posts, one is still left to wonder if there are any situations in which the university can take action against hateful speech on social media.
In other words, how is the university limited in responding to racist social media posts by UA students? And what are the policies of programs within the university (athletics, Greek Like, etc.)?
First Amendment protections
It turns out that student speech, even when racially insensitive, is strongly protected by the First Amendment.
The Daily Wildcat asked Kendal Washington White, dean of students and vice provost of campus life, what discipline (if any) a student might typically face if they make a racist statement on social media. While there isn’t anything that can be done administratively, her statement revealed the personal approach that administration takes to individuals involved in incidents like these.
“Most speech is protected by the First Amendment, thus the Dean of Students Office (DOS) cannot initiate a Student Code of Conduct investigation when students engage in racist messaging; however, we can compel students to meet with a DOS staff member to discuss the impact their thoughts, actions and judgement have on the targeted communities," Washington White said via email. "We discuss their safety if their posts have gone viral, like the incidents we’ve experienced this summer. A conversation regarding transferring to another institution might be in order and we seek opportunities to engage with those individuals to recognize their thinking errors.”
In addition, the university's nondiscrimination and anti-harassment code sets a high standard for what is considered a violation, and the nature of the speech being online makes it even less likely to meet this standard, explained Jane Bambauer, professor of law at the UA, in an email.
“Students have very strong rights to free speech, particularly when their expression occurs off-campus (including in online forums)," Bambauer said via email. "The University of Arizona would be unlikely to investigate or punish a student for making racist or insensitive statements on social media unless the student is crafting and directing messages in a way that violates the university's nondiscrimination and anti-harassment code. The standards for a violation are very high, requiring communications that ‘a reasonable person would perceive to be sufficiently severe or pervasive to create an intimidating, hostile, or offensive environment for academic pursuits, employment, or participation.’ This is consistent with case law that affords significant protection to students who are penalized or investigated by college administrations based on their online speech.”
This analysis largely falls in line with the statement from the dean of students. However, given that the Student Code of Conduct and Anti-Harassment Policy do not prohibit racist social media posts, one is left wondering what they actually do prohibit.
Student Code of Conduct and the Nondiscrimination and Anti-Harassment Policy
In the aforementioned statement released by Folks, she explained that the UA follows up on each incident and enforces violations of the code of conduct.
“Please know that we appropriately follow-up with each student to educate them of our shared values, and to help them to understand the impacts of their actions on others," Folks said in the statement. "If students have violated our Code of Conduct, we will enforce it.”
The UA's Student Code of Conduct is determined by the Arizona Board of Regents and is followed by students from the UA, Arizona State University and Northern Arizona University.
Among the types of prohibited conduct listed by the university are the following:
“Endangering, threatening, or causing physical harm to any member of the university community or to oneself, causing reasonable apprehension of such harm or engaging in conduct or communications that a reasonable person would interpret as a serious expression of intent to harm,” and, “Engaging in discriminatory activities, including harassment and retaliation, as prohibited by applicable law or university policy.”
As Washington White explained previously, racially insensitive social media posts are not something that administration can take action against. However, it is clear that harassing individuals, especially based on race, is against the code of conduct.
The document lists the following sanctions that the university may apply in response to Code of Conduct violations: expulsion, suspension, degree revocation, probation, warning, administrative hold, restricted access to university property, organizational sanctions, interim action, academic conduct, restitution, notation on transcript and “other sanctions permissible under existing university rules.”
The code states that the factors taken into consideration when determining what sanctions to impose on a violator include “the individual's prior conduct record, the nature of the offense, the severity of any damage, injury, or harm resulting from the violation, the payment of restitution to the university or to any victims, or any other factors deemed appropriate under the circumstances, including but not limited to the individual’s participation in an approved counseling program.”
Students may file a code of conduct complaint using this online form.
The Nondiscrimination and Anti-Harassment Policy is unique to the UA and specifies what constitutes discrimination and harassment.
The policy defines discrimination as “when an individual, or group of individuals, is treated adversely because they belong to a classification of individuals that is protected from discrimination by a federal or state statute or University policy” and it defines harassment as “unwelcome behavior, based on a protected classification, that a reasonable person would perceive to be sufficiently severe or pervasive to create an intimidating, hostile, or offensive environment for academic pursuits, employment, or participation in University-sponsored activities.”
If someone was going to make the case that a racist social media post constitutes harassment, they would need to prove that it creates “an intimidating, hostile, or offensive environment for academic pursuits, employment, or participation in University-sponsored activities,” as previously explained by Bambauer.
Consequences for violators of the Nondiscrimination and Anti-Harassment Policy are similar to that of the Student Code of Conduct: "reprimand, demotion, denial of promotion, termination from employment or from educational programs, or other appropriate administrative action.”
То inquire for more information and file complaints, members of the UA community “may contact the Office of Institutional Equity or the Dean of Students Office at any time to ask questions about discrimination, harassment, retaliation, or complaint-filing procedures and may provide information without disclosing their names,” according to the policy.
The Daily Wildcat reached out to the officials in charge of Greek Life, Arizona Athletics and the Associated Students of the University of Arizona (which presides over many clubs and other extracurriculars) to learn more about their policies on social media use and how they handle racism from its members. Most of their policies refer to the standards set forth by the Nondiscrimination and Anti-Harassment Policy, with a few more actions taken that are relevant to the program’s operation.
Marcos Guzman, assistant dean of students and director of fraternity and sorority programs, explained in an email that relevant information is also shared with the headquarters of a Greek organization in addition to referring an incident to the dean of students.
“We don’t have a policy but we do have a protocol," Guzman said via email. "We share the information with both Kendal Washington White, Vice Provost for Campus Life & Dean of Students, and Chrissy Lieberman, Associate Dean of Students. If there is any violation of the student code of conduct, they would be the ones to make that determination. Additionally, we share the information with the inter/national sorority or fraternity headquarters executive director as this may impact the members standing with the organization. We then make contact with the Greek student population that may have been impacted the most by the statements to provide them with resources or whatever they may need.”
Matt Ensor, director of communication services for the athletic program, referred the Daily Wildcat to the program’s social media policy, which prohibits, “Any material (such as comments, photos or videos) or actions of approval (such as likes, retweets or favorites) that depict or support violations of the University of Arizona’s Title IX or Anti-Harassment and Discrimination Policy, or the Arizona Boards of Regents’ Student Code of Conduct Policy.”
Ensor also elaborated on some of the efforts of the athletic program to foster a welcoming community of inclusion and diversity.
“Our athletics department has an Inclusive Excellence Council that focuses on increasing and supporting inclusion, building trust, and appreciating differences amongst our student-athletes and staff within the athletics department," Ensor said via email. "Led by our Assistant A.D. for Diversity, Inclusion and Employee Engagement, Thomas Harris, the IEC hosts outstanding programming, Zoom open discussions and does a lot of work with social media. The most recent example of this work in the @ArizonaFootball content surrounding Juneteenth, which is one of the many recent projects spearheaded by the IEC on social media in support of the University of Arizona’s commitment to a vibrant, empowered and inclusive campus.”
The two ASUA officials that the Daily Wildcat reached out to either declined to comment or did not respond to a request for comment. However, all clubs and other organizations associated with ASUA are required to create their own constitution in which the following non-discrimination statement must be included:
“This organization shall not discriminate on the basis of race, color, religion, sex, national origin, age, disability, veteran status, sexual orientation, gender identity, or genetic information in any of its policies, procedures, and practices. This policy will include, but is not limited to recruiting, membership, organization activities, or opportunity to hold office [except as permitted pursuant to the exemptions to the University’s Nondiscrimination and Antiharassment Policy for Social Greek Letter Organizations and Religious Organizations listed in the ASUA Club and Organization Handbook].”
Is education an antidote to racism?
In the conclusion of her email to the Daily Wildcat, Washington White offered the following message:
“It is important for the campus community to know that I and the staff of the Dean of Students Office find the vile, racist, and insensitive behavior to be vile, deplorable and disruptive to the climate and culture of the University. The DOS staff understands our role in upholding the right of freedom of expression, yet we also support the students who are victimized by these individuals who display appalling and cruel conduct.”
Washington White’s statement is one that expresses solitude with victims of racism but still leaves one to wonder what recourse these victims have. Is education really the most effective antidote to racism, as Folks suggests?
Bambauer suggested that the role of the university as a place to develop one’s critical reasoning and personal values can make education an effective antidote to racism so long as it is coupled with social accountability, which stems from the Wildcat community.
“The much more likely consequence that a student will face when posting content that is, or is perceived to be, racist will be backlash in the form of counter-speech from the U of A student community. Counter-speech, even when it's uncivil, is also protected so long as it does not objectively pose a threat to the original speaker," Bambauer said. "The social sanction is much more likely to cause self-censorship and guarded, highly superficial discussions about race than university policy."
Confrontation leads to an examination of conscience, she suggested, and this introspection can provide a path for personal change.
"If you find yourself accused of racism, you can ask whether the accusers have a point – whether there was some mistake or oversimplification (given the context) in what you had said and correct for it," Bambauer said. "If the accusers are reactionary and illogical, you can ask whether they have a point anyway. There is great satisfaction in making the strongest case for your detractors and seeing what you can learn from it. And if what you learn is that all or some of your beliefs can stand up to the test of logical and empirical challenge, then this is valuable, too. You can be at ease in the winds of popular opinion. Logic and philosophy — these are the true guardians of conscience, and the ones that universities aspire to instill.”
Follow Kristijan Barnjak on Twitter