Every college — public or private, large or small, residential four-year or not — is one tweet, email, or protest away from a First Amendment tussle. That’s the message many higher-education lawyers are sharing with their colleagues here at the annual meeting of the National Association of College and University Attorneys.
Campus general counsels, especially at public universities, are still on edge after a chaotic 2017 filled with high-profile protests and tensions surrounding visits by speakers who espouse views that are either hateful or offensive or are perceived that way.
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Every college — public or private, large or small, residential four-year or not — is one tweet, email, or protest away from a First Amendment tussle. That’s the message many higher-education lawyers are sharing with their colleagues here at the annual meeting of the National Association of College and University Attorneys.
Campus general counsels, especially at public universities, are still on edge after a chaotic 2017 filled with high-profile protests and tensions surrounding visits by speakers who espouse views that are either hateful or offensive or are perceived that way.
William E. Thro, general counsel at the University of Kentucky, has been attending the association’s annual conferences for two decades. “I never, ever remember constitutional issues, broadly defined — free speech, due process, other things — being as prominent as they are now,” he said.
Most colleges don’t have the activist culture of, say, the University of California at Berkeley, where an enormous protest of the right-wing provocateur Milo Yiannopoulos turned violent — prompting international media attention and a response from President Trump.
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Illinois’s Governors State University, for instance, enrolls many commuter and part-time students who also work, said Sarah Luke, general counsel there. Campus demonstrations are possible, she said, but a lot of students “probably don’t want to drive in just for a protest.”
In terms of expression, she’s more often dealing with students’ social-media activism and complaints about something that was said in a classroom.
At a panel discussion on Monday, Thro and Kay Heidbreder, general counsel at Virginia Tech, walked attendees through case studies of campus-speech flare-ups that might be more common to a broader range of institutions than the controversial-speaker scuffles that took place at Berkeley and Middlebury College last year.
One concerned a wealthy alumnus who made a large donation to a university, in part to fund a statue of the institution’s longtime former football coach. The coach, it turned out, had criticized the Brown v. Board of Education court decision, which desegregated public schools, and had never put a black football player on his team. And the donor was opposed to gay marriage on religious grounds.
Students demanded that the statue be taken down and the money be returned. “This could very quickly turn into a protest at any given time,” Heidbreder said. “And it’s not going to be the kind of thing where students ask for a permit; it’s going to be spontaneous.” Right when someone says they’re thinking of making a major contribution to your campus, start doing your research, she suggested.
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Another case covered a graduate student and teaching assistant who had started a neo-Nazi blog. He didn’t talk about his views in class, but people were asking for him to be fired and removed as a student from the campus. “The university president is very upset about this, the community is very upset about this, and the advice of the general counsel is going to be, You really can’t do a lot,” Thro said.
If students stage a protest outside of the teaching assistant’s classroom, the university can consider shutting that protest down, he said, because it may be disrupting other classes and the flow of foot traffic in the hallway. Officials can also issue a statement saying that the teaching assistant has a right to privately hold hateful views and that the university denounces such beliefs.
Many lawyers here say keeping up with controversies as they develop rapidly online is an increasingly difficult part of their job. “Social media today is much better in terms of getting protesters to show up,” said Monica C. Barrett, a New York lawyer who formerly served as interim general counsel at Rutgers University.
Teresa A. Sullivan, president of the University of Virginia, talked about how her institution had handled — and mishandled — the white-supremacist rallies in Charlottesville last year. “We thought we were doing a good job of monitoring social media, but we weren’t,” Sullivan said during the opening plenary, on Sunday.
But once she got wind that the racist protesters were planning to march on the campus, she got her general counsel involved right away. Campus lawyers, she said, play a crucial role when there’s unrest.
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When something goes wrong at a university, “there’s always an immediate cry from legislators, alumni, citizens in the community to fire everybody in sight,” she said. The general counsel’s office, she continued, can provide tactful, reasoned advice to help presidents react more thoughtfully in such situations.
Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.