The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Can grad students' conversation about how gays could be executed in Muslim countries lead to discipline at a U.S. university?


Gay Star News reports on an accusation made by Alfred MacDonald, a philosophy graduate student at University of Texas at San Antonio (who has since moved to another university); see also this Bruce Bawer (PJMedia) post. MacDonald says he was involved in a conversation with a fellow graduate student that turned to religion:

The student MacDonald was talking to mentioned she was a Christian while her fiance was Muslim.

MacDonald responded by explaining he didn't have a 'high opinion of Islam' because 'there are Muslim countries where I could get executed.

'I mentioned that I didn't have anything against her fiance personally and that I was strictly talking about the religious beliefs themselves.

'I took this to mean that she wanted to talk about our personal lives, so I mentioned my fiancee and our leanings and we talked about what restaurants she's worked at….'

MacDonald was then called into the department chair's office, where she told him that he could be subject to administrative discipline for this speech; he secretly recorded the conversation and put what he says is the audio online here and here (shortened version), and the transcript here. (Secretly recording a conversation to which you are party is legal in Texas, though in some other states it's illegal without all parties' knowledge or consent.) Some excerpts:

EVE BROWNING: It's a confusing comment to me because Muslims do not all live in countries in which bisexuals are executed. Muslims live in the United States … Muslims live in France, Muslims live in every country in the world—it's the fastest growing world religion.

ALFRED MACDONALD: Yeah, one of my good friends at the university is Muslim.

EVE BROWNING: And do you tell him that you object to his religion because there are places on earth where gay, lesbian and bisexual people are discriminated against, including your own country?

ALFRED MACDONALD: Well, "her." And my verbiage was "killed" not "discriminated against." I mean, Death penalty's pretty severe.

EVE BROWNING: What does that have to do with her being engaged to a Muslim?

ALFRED MACDONALD: Nothing. I wasn't talking about the engagement to the Muslim. I was talking about Islam in that particular moment.

EVE BROWNING: Well, let me just say that kind of thing is not going to be tolerated in our department. We're not going to tolerate graduate students trying to make other graduate students feel terrible for [their] emotional attachments…. And, if you don't understand why that is, I can explain fully, or I can refer you to the Behavior Intervention Team on our campus which consists of a counselor, faculty member, and person from student affairs who are trained on talking to people about what's appropriate or what isn't.

ALFRED MACDONALD: I just won't bring anything up about Islam again. That's pretty simple. Although I'm not sure what you mean by… so I've read the student handbook pretty th-well not pretty thoroughly, but I've read it at least twice, and what do you mean by "it won't be tolerated?" Like I'll be straight up prevented from registering? Or the team that you mention, the behavior intervention team, they're going to do something or … what exactly is the penalty for breaking that assuming that I'm in some other situation where I say something that someone else finds offensive and you…

EVE BROWNING: We'd put it either before the behavior intervention team or the student conduct board and ask them to make a recommendation.

ALFRED MACDONALD: Ask them to make a recommendation? What does that mean?

EVE BROWNING: Whether they would refer you for counseling; whether they would recommend that you be academically dismissed; they would assess the damage. They would probably try to speak to the students who are complaining and the faculty that are complaining and make a recommendation. In any case …

ALFRED MACDONALD: And this is over … I thought that UTSA was a public university with first amendment protections? So I could be dismissed for stuff like that? Just …

EVE BROWNING: Making derogatory comments? Yes.

There is other material in the audio that suggests that MacDonald had had other friction with other faculty members in the past, so he might have been a difficult student in other ways—I can't speak to whether or not that's so. I should also acknowledge that even implicitly faulting someone's loved ones for their ideology will often lead to tension and is generally not the most effective way of dealing with such things. If someone told you that she's marrying someone who was involved in the local Trump campaign, that's probably not the best time to bring up how bad President Trump's ideology is; you're just not going to win converts that way.

Nonetheless, it seems to me that college and graduate school students have to be free to discuss such matters, including in ways that bear on the ideas believed by the other person's friends and family (and even when prompted by mention of the friends and family), without the fear of administrative discipline for "making derogatory comments" or "mak[ing] other graduate students feel terrible for [their] emotional attachments."

If I say that I'm a Scientologist or a conservative Christian or a Catholic or a Muslim or a Trump supporter or a Sanders supporter, or that my friends or family are that, classmates shouldn't be punished for using that as occasion to criticize Scientology, conservative Christianity, Catholicism, Islam, Trumpism or Sandersism. (Perhaps if I'm repeatedly approaching them about a personal topic after they've told me to stop, the university might enforce that, but there's no reason to think this was so here.) Indeed, a student should be free to speak to classmates about such matters in any department, but that's especially clear in philosophy, which is supposed to be all about people trying to find difficult truths.

Nor do Browning's remarks, at least those on this recording, reveal any clear limiting principles about what sorts of criticisms of Islam are permissible. Would MacDonald be in trouble for criticizing Islam in the future whenever the student with the Muslim fiancee is in earshot? What about criticizing Islam in a group in which he has reason to know some classmates are Muslim, or have Muslim family members? What if someone not only says that her fiancee is Muslim, but that she thinks it's a lovely religion; does he have to remain silent, or can he point out that several countries that adhere to the religion would potentially criminally punish—or even execute—gays?

I emailed Browning to ask for her side of the story but haven't heard back from her. Gay Star News reports that it also emailed her, and she declined to respond substantively, saying, "The number of threats I am receiving (due to threads the student has started on Reddit) makes this a subject I would not feel safe discussing even very generally."