The Foundation for Individual Rights in Education on the GWU swastika suspension [UPDATED]

|The Volokh Conspiracy |


From FIRE; see the post itself for further links:

The George Washington University (GWU) has ignored both context and its own promises of free expression by suspending a Jewish student for placing a souvenir Hindu swastika obtained on a trip to India on his residence hall's bulletin board. The Foundation for Individual Rights in Education (FIRE), along with the student's attorneys and the Hindu American Foundation, are calling on GWU to revoke the suspension.

On March 16, the student placed a small, bronze, Indian swastika on a bulletin board at GWU's International House residence hall. He intended to educate his friends and co-residents about the symbol's origins, which he learned about during a spring break trip to India. The student had learned on his trip that although the swastika was appropriated by Nazi Germany, it has an ancient history in many cultures as a symbol of good luck and success.

After a fellow student reported the swastika to the GWU police department, the university quickly suspended the student and evicted him from university housing, pending the outcome of five disciplinary charges. The university also referred the incident to the District of Columbia police for investigation as a potential "hate crime." …

Prior to the student's ordeal, International House had recently been the target of an unidentified vandal who drew three swastikas on the walls. In light of this vandalism, the student—himself Jewish—thought that educating his predominantly Jewish brothers in the Zeta Beta Tau (ZBT) fraternity living at International House about the swastika's ancient roots would be empowering.

After posting the swastika, the student stayed close to the bulletin board in order to discuss it with observers. He briefly stepped away, however, and a member of the student's fraternity saw the swastika and called GWU's campus police, who filed a report and took the item as evidence. When the student found out the police had been called, he immediately claimed responsibility and attempted to clarify his intent.

On March 18, two days after the incident, GWU notified the student that he was facing five disciplinary charges and that he was suspended pending their adjudication. The terms of the interim suspension included temporary eviction from university housing, suspension from class and university activities, and a prohibition from stepping foot on campus property…. The student's hearing on these charges was held on April 20…. The outcome of the hearing is still pending.

I think that both public universities and private universities that claim to protect free expression shouldn't suspend even students who post swastikas as an expression of anti-Semitism. That's a First Amendment principle for public universities, and an academic free expression principle for private ones. (Rules restricting students' posting on student group bulletin boards, when they are not members of the student group or authorized by that group, would be legitimate, I think, but they would rarely call for suspension; and in any event, here the student was indeed a member of the ZBT fraternity.)

But on the facts of this case, the suspension seems especially hard to justify. And it is especially chilling of other kinds of speech that people might interpret, rightly or wrongly, as offensive, whether Confederate flags, Redskins paraphernalia, or anything else of that sort.

UPDATE: The statement that "the student stayed close to the bulletin board in order to discuss it with observers" but then "briefly stepped away" might not be accurate; I have since corresponded with the student's lawyers, who report,

The student's room is right next to the bulletin board, and from his room he could easily hear what went on by the bulletin board. After hanging the ornament, he went back to his room. After about ten minutes, he got a text message from his friend inviting him to breakfast right then, and he rushed off to breakfast without remembering to take the ornament off the board. He learned about his fraternity brothers' reaction to the ornament after he finished breakfast, and he rushed back to the dorm to explain his conduct and intention to his brothers. He also provided a full account to the university police.

This doesn't affect my judgment about the case, but I thought I would note it for the record.