The Volokh Conspiracy

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Free Speech

Emory Law School Student Government Refuses to Recognize an Emory Free Speech Forum Student Group,

citing the "harm that could result from ... discussions," especially about "race and gender."


Here's part of the justification for the denial (see p. 10) from the student government, known as the Student Bar Association or SBA:

Finally, due to the nature of this group we are concerned with the lack of mechanisms in place to ensure respectful discourse and engagement. Without safeguards in place, such as a moderator or mediator, these discussions will likely give rise to a precarious environment—one where the conversation might very easily devolve.

In particular, it is disingenuous to suggest that certain topics of discussion you considered, such as race and gender, can be pondered and debated in a relaxed atmosphere when these issues directly affect and harm your peers' lives in demonstrable and quantitative ways. As brought up during our meeting, there is nothing to prevent you from having these conversations in the casual manner you envision. The SBA is hesitant to issue a charter when there are no apparent safeguards in place to prevent potential and real harm that could result from these discussions while under the umbrella of SBA-chartered organizations.

Yet of course other chartered student groups aren't required to have "safeguards" or "moderator[s] or mediator[s]" for their events, whatever "topics of discussion" those groups offer. It seems clear that the SBA's rationale stems from the student government officials' concern about particular viewpoints that they expect the group to include on those topics; but, as today's statement by the Foundation for Individual Rights in Education notes,

SBA's denial of a student group based on its viewpoint contradicts Emory's Respect for Open Expression Policy, which affirms "an environment where the open expression of ideas and open, vigorous debate and speech are valued, promoted, and encouraged." The SBA also blatantly [flouts] Emory's commitment to "not deny recognition to an organization because of disagreement with its mission or the viewpoints that it represents." Without recognition, a student group cannot reserve university space, request funds from the SBA, or function as a viable campus organization.

FIRE's letter to the Dean of Emory Law also points out (n.3) that the "SBA's recognition authority is derived from the Student Government Association, which in turn derives its authority from the university and promises students freedom of expression."

The SBA also argued that the group's coverage would duplicate that of other groups:

The purpose and goals of your organization overlap considerably with the purpose and goals of several other existing organizations on campus, and we encourage you to collaborate with them to host the discussions you brought up in your presentation. If the discussions you envision for your group cover a wide array of topics, we suggest you reach out to the several Emory Law Practice Societies.

Emory's Respect for Open Expression Policy has continuously promoted the free speech values you mentioned in your presentation, and the university provides Open Expression Initiatives campus-wide. Because of this well-established promotion of free speech values across Emory school, we fail to see a need for this particular club to be chartered and subsequently funded by SBA.

We recognize the importance of promoting free speech, and we believe that Emory already fosters open dialogue in many active ways. We encourage you to reach out and collaborate with existing student organizations that share a great interest in free speech. While we are unsure how your organization's mission will be furthered meaningfully with a charter from SBA, we encourage you to continue to meet to discuss.

But that strikes me as hard to justify; to quote FIRE's letter,

It strains credulity to assert that the EFSF substantially overlaps with any existing campus group. The two Emory Law student groups mentioned by the SBA when discussing the EFSF, the Federalist Society and the American Constitution Society, have vastly different purposes from the EFSF's nonpartisan, neutral, and narrow mission of "fostering critical discourse and open dialogue surrounding important issues in law and society." The Emory Law Federalist Society chapter's mission reflects its "conservative and libertarian" objectives, and provides that its "core principles are (1) that the state exists to preserve freedom, (2) that the separation of governmental powers is central to our Constitution, and (3) that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

The American Constitution Society chapter's mission is similarly political, seeking to "foster[] a new generation of progressive leadership in the law." That the EFSF might draw threads from both of these perspectives, as part of its pursuit of respectful discourse and engagement of topics that the EFSF selects, does not mean that the EFSF "substantially overlaps" by necessity (or at all) with the subject matter(s) encompassed by the groups the SBA cited.

Nor does the EFSF duplicate the work of the Practice Societies mentioned by the SBA, which instead focus on "plan[ning] networking and professional development events focused around specific practice areas" and "bridg[ing] the academic realm and the real world of practice." The SBA fails to explain how a group devoted to discussion overlaps with university professional development initiatives.

Additionally, the SBA avers that the EFSF's "free speech values" are already "well-established" and "continuously promoted" by Emory's Respect for Open Expression Policy and Open Expression Initiatives, yet fails to elaborate on how a student group's goal of fostering open debate by actively hosting speakers and discussion-based events is redundant of university policy protecting expressive rights. Sharing the same values as university initiatives is far from a legitimate reason to withhold allocation of scarce institutional resources, and cannot justify denying recognition to a student group.

Finally, among the more than 60 organizations recognized by the SBA, there are already several overlapping organizations, such as the multiple groups dedicated to trial practice, LGBT issues, and international students. This suggests that the SBA's similarity-of-purpose rationale is a pretextual justification for the SBA's viewpoint-based rejection of the EFSF.