Volokh conspiracy lawyer scrgruppen
Here is the text of today’s message (see here for The complete messageincluding footnotes):
FIRE is deeply concerned by the recent proposal by New York University School of Law re New York times It may investigate student Rena Workman for protected political speech amid intense public and campus-wide criticism for expressing views on the Israeli-Palestinian conflict.
“For legal reasons,” NYU Law said. times Wednesday, “We cannot comment on the details of any current student who may be under investigation. In general, all complaints of bias and/or discriminatory behavior are investigated thoroughly and in accordance with federal, state, and local guidelines, and appropriate disciplinary action follows the outcome of that process.”
This raises concerns because when a complaint of bias or harassment appears to allege little more than protected expression, the correct approach, under NYU’s clear promises of free speech, is to ask officials to conduct a rapid internal review. If this review confirms that the complainant is complaining of protected expression only, NYU can immediately close the case without notifying the accused student, while at the same time providing support to the aggrieved complainant. To be sure, NYU may face some significant obligations to investigate discrimination, harassment, threats, or other misconduct on campus—but it should not launch public investigations where the allegations consist of nothing more than pure political expression.
This is because even investigations that ultimately end in favor of the accused can severely discourage speech on campus. The investigation in such a case is not whether a formal sanction was ultimately imposed, but whether the university’s actions “intimidate a determined layperson” from engaging in any protected activity in the future. Thus, NYU’s public reference to Workman’s speech as potential misconduct sends a chilling message not only to Workman, but to all students and faculty that they may face disciplinary action for engaging in substantive political expression. Notably, there is no indication in any of the public reports that Workman engaged in any misconduct at all.
Speech that might lead to a complaint of bias or harassment often does not, in fact, come close to meeting the high legal threshold for discriminatory harassment, which the U.S. Department of Education’s Office for Civil Rights has said must include “something beyond the mere expression of one’s views.” Looks, words, symbols or ideas that someone finds offensive.” Likewise, in Davis v. Board of Education of Monroe County, the Supreme Court established a clear definition of student (or peer) harassment. For a student’s conduct (including expression) to constitute actionable harassment, it must be (1) unwelcome, (2) discriminatory on the basis of protected status, and (3) “so serious, pervasive, and objectively offensive that it can be said to disadvantage the victim.”[] Access to educational opportunities or benefits provided by the school.”
On the contrary, Workman’s reported statements are the kind of emotional and substantive political rhetoric one might expect on a college campus. They are fully protected even if other students find them offensive or even hateful. If such speech results in a biased report, NYU Law is required to expeditiously review the complaint before launching disciplinary action that may have no merit.
Investigations that involve the threat of disciplinary action would particularly discourage normally assertive law students, who often have to disclose any disciplinary action when they apply for legal jobs or the bar. These students face additional incentives to self-censor rather than risk any type of misconduct investigation that could frustrate their legal careers. However, law students, in particular, should be free to discuss contemporary legal issues without fear of institutional retaliation for their engagement in protected expression.
At this moment of intense discord on our nation’s college campuses, students concerned with the conflict in the Middle East are sharing their views with the passion and urgency that a humanitarian crisis of this magnitude requires. NYU and NYU Law must act now with equal urgency to reassure Workman – and all students and faculty – that they will not face investigation for exercising their right to do so.
We request a substantive response to this letter no later than the close of business on October 20, 2023, to confirm that NYU will publicly recommit to honoring its clear free speech obligations.
Seems true to me. FIRE did not discuss Workman’s expression of her views as SBA president, not as a regular student. But while I think the SBA (or any other student group) may be right Remove administrator Because of what the official said, this should be a group matter, not a university investigation.
