The Volokh Conspiracy
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So reports the Foundation for Individual Rights and Expression, with a link to a transcript of the group chat in which the speech being investigated took place; I appreciate that at this point the university is just investigating, but it seems to me that even investigations of such speech are unduly chilling of student discussions—especially when the investigations go on for a month (the university's Notice of Investigation is dated May 25).
Universities need to promptly reject such complaints in the first place, rather than starting a full-on "harassment" investigation process. Here's an excerpt from FIRE's press release:
Eight law students at American University are under investigation for participating in a heated back-and-forth following the leak of the Dobbs v. Jackson draft opinion, after another student said their pro-choice commentary harassed and discriminated against him based on his religious, pro-life beliefs.
American's disciplinary investigation stems from a class group chat in which the accused students discussed the ramifications of Justice Alito's draft majority opinion overruling Roe v. Wade and Planned Parenthood v. Casey.
"This is absurd. There's nothing even approaching harassment or discrimination in the chat," said Alex Morey, an attorney at the Foundation for Individual Rights and Expression. "American cannot let its process for investigating actual discrimination and harassment be weaponized to investigate students' opinions, but that's exactly what's happening here."
On May 2, in their class section's GroupMe chat, students criticized the leaked Supreme Court opinion and discussed options to protest and donate money to abortion advocacy groups.
One student, who later filed the harassment complaint, wrote that, "as a Republican, I find it insulting that conservatives would be thought of as overturning people's civil rights…"
Another student responded with: "Can we shut the fuck up about personal opinions while people process this?"
The self-identified conservative student later wrote:
Everyone is entitled to their opinion and you all are more than welcome to protest. I find it interesting how the call to silence our personal opinions happens after I defended my deeply-held religious beliefs and yet nobody has mentioned that same sentiment about the pro-abortion posts. I was raised to stand up for my values, so baseless claims that abortion bans are "class warfare" is deeply offensive to both me and my Greek Orthodox faith.
The other students didn't mention the complainant's faith, and continued discussing protests and blaming conservatives for the impending Roe v. Wade reversal.
The eight accused students received a notice from American's Office of Equity & Title IX on May 25 saying they were under investigation for "harassing and threatening messages" that "unreasonably interfered with [the complainant's] educational experience."
Daniel Brezina, one of the accused law students, said the investigation has made students like him fearful of discussing anything remotely controversial.
"I can't believe American is investigating us for having a frank discussion about abortion access," Brezina said. "This is going to have a massive chilling effect on honest discussions at the school. What good could possibly come of that?" …
FIRE has repeatedly warned American that its policies are ripe for abuse….
Investigations into clearly protected speech, even ones that don't result in further punishment, create a chilling effect among students — a punishment in itself.
"Of all people, law students have to be able to engage in heated debates about momentous constitutional questions and rulings without fearing they'll be accused of 'harassment' by classmates," said Morey. "This is a heated political discussion, not discriminatory harassment warranting a [disciplinary] investigation. American should never have legitimized this retaliatory complaint with an investigation. It's a total disgrace."
If this were a group chat set up for a class by the school (it apparently wasn't), and the professor had called up the relevant students and told them that this is part of the class, and it's important for law students to learn to talk to each other civilly and productively—both for the sake of having useful discussions during their educational experience, and for learning to be better lawyers—that would have been quite permissible. Indeed, that's what I do if students insulted each other in class discussions (e.g., "Can we shut the fuck up about personal opinions …?"), and I expect I'd do the same for class online chats, though I don't have them for my classes. But an administrative investigation for alleged "harassment" strikes me as a much more serious matter.
Here's a copy of the chat transcript, provided by FIRE; the accusing student is Student 4, and the accused students are Students 3, 5, 7, 8, 11, 12 & 15
Notes: … Two messages in the chat log FIRE obtained had been deleted. One of the messages was sent before the complaining student said anything in the chat and thus is highly unlikely to have been the basis for a harassment charge. The second deleted message, according to a student who saw it, concerned what other constitutional rights (such as gay marriage and interracial marriage) might be next to fall. Such an observation does not constitute harassment.
Errors are in original.
[Student 1]: [Link to draft opinion in Dobbs v. Jackson Women's Health Organization]
[Student 1]: ^alito's opinion that will overturn roe when it's published
[Student 2]: [gif of two stunned women]
[Student 3]: I blame James Comey and that stupid fucking letter he sent in 2016
[Student 3]: And what are they going to go after next?
[Student 3]: Griswold, Obergefell, Loving?
[Student 3]: [Deleted]
[Student 4]: James Comey is a patriot who served his country as the Director of the FBI. Also as a Republican, I find it insulting that conservatives would be thought of as overturning people's civil rights like Obergefell or Loving
[Student 5]: I—
[Student 6]: [replying to student 5's last message] [Loudly crying face emoji]
[Student 3]: [Deleted]
[Student 7]: Can we shut the fuck up about personal opinions while people process this?
[Student 5]: I—
[Student 8]: ^period
[Student 9]: People who have actually experienced this. Thank you.
[Student 5]: Sidenote— in case any patriots are wondering, I'm home safely after a late night metro ride! Good night everyone!!
[Student 10]: If anyone hears of any protests that are gonna go on, please send details in here!!!
[Student 2]: [screenshot of an Instagram post from @mdc_dsa advertising a DC DSA protest "on the steps of the Supreme Court beginning at MIDNIGHT TONIGHT." The first sentence of the post says "Abortion bans are class warfare."]
and shut down DC is doing one at 6 pm tomorrow
[Student 4]: Everyone is entitled to their opinion and you all are more than welcome to protest. I find it interesting how the call to silence our personal opinions happens after I defended my deeply-held religious beliefs and yet nobody has mentioned that same sentiment about the pro-abortion posts. I was raised to stand up for my values, so baseless claims that abortion bans are "class warfare" is deeply offensive to both me and my Greek Orthodox faith
[Student 5]: I———
[Student 7]: There was a request for info about abortion protests. No one asked for your personal opinion. If you don't have the deceny to shut up while people come to terms with the fact that they've just lost a constitutional right then that says a lot about you
[Student 5]: [Replying to Student 4's last message] I gotta start liking my own messages from now on..
[Student 10]: If anyone wants to make a group for the 6 pm protest tomorrow lmk!!
[Student 11]: I'm still stuck on the part of conservatives shouldn't be thought of as people who overturn rights like obergefell and loving when they are why we needed those cases in the first place [three thinking face emojis]
[Student 8]: Also defending a whole party that is definitely at fault and pretending like the political isn't personal for a lot of people… wild
[Student 12]: Right—As if they didn't fight tooth and nail against Obergefell only 7 years ago. As if the first time I voted there wasn't a referendum on the ballot to add a gay marriage ban to NC's constitution. I must have imagined all of it.
[Student 13]: Hey guys, I understand a lot of us are feeling very frustrated with all of this, and as [student 7] mentioned, processing what is going on. However, let's treat each other with respect…. We are all adults here and there is no need to be shutting anyone up for a comment or for laughing at them. I think we can do better than this as a section. Respect each other.
[Student 14]: [Image advertising a "#BANSOFFMYBODY" rally at the Supreme Court taking place that evening] Updated info on today's rally for those interested
[Student 10]: Hi, I'meeting [student 8] at the van ness metro stop at 5 to head out to the Supreme Court! People can meet us at the SC or if they wanna meet us beforehand we are gonna get off at union station and walk 15 mins there. I think that's the easiest way to get there?
[Student 11]: Yes or transferring to blue/orange/silver and getting off at Capitol south!
[Student 9]: PSA the senate side fence is for pro choice folks and the house side fence is anti choice folks.
[Student 15]: [Replying to student 4's last message] I respect you [student 4], because…this issue of abortion does NOT impact you in the least bit because you live in (I am assuming) a male body that is not the one being regulated. So STOP MAKING THIS ABOUT YOU and what YOUR BELIEFS are, cause it's not. It's bigger than you and your opinions.
[Student 15]: Also, my two cents on respectability politics is– it's BS, and we are allowed to call each other out on our fucked up opinions if it challenges our very right to exist in this world without regulations, restrictions, or fear. Your [identifying information] Student whose tired of peoples bullshit. Okie Dokie, stay safe at the protests loves!
[Student 16]: [image of advertisement for a teach-in about the future of reproductive rights taking place the next day]
[Student 16]: Also if ppl are trying to move with their pockets, here's an area abortion fund. They exist all over the country
[Student 16]: [link to DC Abortion Fund Instagram account]
[Student 16]: They have politix like this lol
[Student 16]: [Graphic reading "ROE IS THE FLOOR NOT THE CEILING. WE CAN DREAM OF MORE"]
[Student 7]: Just FYI, I emailed [professor] bc I know a bunch of us were curious about content change, etc., for Friday. She said we are to "apply current controlling doctrine as covered this semester . . . . [and] limit your discussion to this semester's readings and classes."
[Student 7]: Also I've been told the school will send out an email with info about self-care and mental health resources today. I had asked why there had been radio silence about this except for news about the rapid response teach in.
[Student 17]: Anyone who wanted evidence but didn't make it for the fall check your emails they just added a new section
Note that FIRE has engaged me to consult on a different project; but in this post, as in others, I'm speaking on my own behalf, not FIRE's (and I certainly wasn't compensated by them for this post).