The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Setting the Record Straight on Masking Rules at George Mason University
Contrary to an article in the Chronicle of Higher Education, Mason is not fulfilling even its basic legal obligations to prevent antisemitic violence.
George Mason University, where I teach, is embroiled in federal civil rights investigations over how it has handled campus antisemitism, and over racial preferences in hiring and admissions.
Various members of the faculty and faculty institutions, notably the local chapter of the AAUP and the Faculty Senate, have risen in defense of President Gregory Washington. The latter organization voted on a hastily-drafted resolution that praised Washington for using racial preferences to try to match the ethnic composition of the faculty with that of the student body. Given that this is blatantly illegal, and was even before the 2023 SFFA decision cracked down on racial preferences more broadly, the resolution not surprisingly attracted additional federal attention.
In any event, I was, as the young people say, "triggered" by a particular paragraph written by professors Tim Gibson, Bethany Letiecq, and James H. Finkelstein in an opinion piece in the Chronicle of Higher Education (paywalled):
The most confusing aspect of this multipronged MAGA-movement attack on Washington is that he has already given his conservative critics everything they wanted. First, far from ignoring antisemitism on campus, Washington and his team have been aggressive — sometimes excessively so — in responding to allegations of antisemitic speech following Hamas's attack on Israel in October 2023. Over all, George Mason has taken stringent policing measures to prevent violence, including implementing an anti-mask policy transparently aimed at students wearing keffiyehs.
This is at best disingenuous, and borders on fabrication. Virginia has a state law that forbids masking for the purposes of concealing identity.
It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.
Virginia statutes § 18.2-422.
The law is unambiguous, and has been upheld in state court against a First Amendment challenge. Almost all egregious misbehavior on college campuses, include at least two assaults on Jewish students at George Mason, has been undertaken by masked students.
Shortly after the Hamas massacre on October 7, 2023 was greeted with masked hate mobs at George Mason praising Hamas, I urged university officials to enforce the law. I was ignored, but I heard from other sources that the university was refusing to enforce the law on the grounds that the local (leftist) Commonwealth's Attorney informed the university that she would not prosecute anyone for violating the law unless they also committed another crime while masked.
I pointed out to university officials that (a) university police (who are official county police) are still responsible for enforcing the law, and if the CA refuses to prosecute, that's her issue; and (b) putting law enforcement aside, the university could have an internal ban on masking because it's illegal, and just use internal disciplinary processes instead of the legal system.
I also eventually learned that the university student handbook already required students to comply with state law, so the university did not have have to implement any new policy to punish violating the statute. (And of course, the point was not to punish students who wear masks, but to stop them from wearing them to begin with, by informing them that they will be punished if they do.)
Anyway, none of my entreaties, or those of anyone else concerned with the issues, went anywhere until Virginia Attorney General Jason Miyares sent a letter to all state universities reminding them of the anti-masking law and their obligation to enforce it.
Even that, however, did not get the university to enforce the anti-masking law. Rather, the university implemented a policy that allows students to wear masks to conceal their identity, but requires them to identify themselves if asked. That's a marginal improvement, but it's quite obviously not what the law says.
I assume the university believes that it's balancing the free speech rights of the students with public safety, but I'm at a loss to figure out where the university gets the notion that it can pick and choose which laws to enforce based on its own assessment of the equities involved.
Beyond the (relatively minor, as I understand it) assaults noted previously, the threat of anti-Jewish violence from George Mason students is not merely hypothetical. One student has been arrested for a plot to attack the Israeli consulate in New York. Two students, sisters and leaders of the university's SJP chapter, were arrested for vandalizing university property. Their home was found to contain vile antisemitic literature, a collection of weapons, and terrorist flags.
Especially in light of that information, the notion that George Mason University has been "overly aggressive" in trying to prevent antisemitic violence because it has implemented a policy that falls far short of its pre-existing legal obligations is risible.
