American University’s Equity and Title IX Office opened an investigation into eight Washington College of Law students on May 25, following a complaint detailing allegations of harassment and discrimination on the basis of political and religious beliefs.
The alleged harassment took place in a GroupMe class chat following the leaked decision to overturn Roe V. Wade on May 2. The transcript of the group chat texts shows that the complainant expressed their pro-life beliefs and other students within the chat criticized the complainant. The University opened a formal investigation into the complaint on May 25 for “harassing and threatening messages” that “unreasonably interfered with [the complainant’s] educational experience,” according to a notice the students received from the University’s Office of Equity and Title IX.
A press release from FIRE announced that Daniel Brezina, one of the students who was facing an investigation, was cleared by the University on July 7 after being under investigation for 43 days. The press release states that it is unclear whether or not the other seven students are still under investigation.
On June 24, the Foundation for Individual Rights and Expression (FIRE), a nonprofit and nonpartisan group that advocates for free speech on college campuses, put out a press release criticizing the University’s decision to investigate the WCL students. The press release stated that the investigation is taking place under the university’s non-Title IX harassment policy which FIRE says is too broad. The non-Title IX harassment policy allows the university to deal with instances of harassment not related to sexual misconduct.
The policy in question is under section III (B) and states that “written, printed or graphic material that contains offensive, denigrating or demeaning comments or pictures; displaying offensive, denigrating or demeaning posters, emails, text messages or cell phone pictures” can all constitute harassment.
Alex Morey, FIRE’s director of campus rights advocacy, said that this policy leaves too much interpretation for what can be considered offensive speech. FIRE has been advocating for the University to change this policy for years now, she said.
“This policy, by saying anything offensive, [means that] anytime anyone's offended, that's harassment and discrimination,” Morey said. “That goes against all the legal standards, which first say offensive and hateful speech is protected … But this [AU] policy says, no, no, just one offensive comment, and we can investigate somebody.”
Morey said that the University opening an investigation into the WCL students also poses an issue because the expectation of law students is to engage in civil debates on controversial topics. She explained that the investigation poses a barrier to the eight students passing the American Bar Association exam, as applicants must pass a background check from a state's bar that includes a fitness and good character test.
“You tell the bar why you're … a good person who's fit to be a lawyer, or you may have to apply for jobs where they're looking for the most upstanding legal citizens. Sometimes you have to disclose not just whether or not you've been found responsible for something, but whether you've been investigated,” Morey said. “So … [an investigated law student taking the exam] might be facing more hurdles towards getting themselves barred or towards getting that coveted legal job.”
While only one student has been publicly identified, Morey said that the majority of students being investigated already face many barriers to passing the bar exam. “Many of them [students under investigation] are women of color. One thing that stuck out to me as a female in the law is that these are populations that are frequently facing barriers to [legal] careers,” she said.
According to the American Bar Association, women of color are shown to statistically pass the bar exam for the first time at lower rates than white women.
Others have also publicly made statements about the investigation, including University of California Los Angeles law professor Eugene Volokh. Volokh told The Eagle that the University’s decision to formally investigate the complaints results in a “chilling effect on speech.”
“When [the group chat dispute] is being labeled as a law school investigation into an allegation of harassment, harassment is a big deal… I would think that many students, even if they’re confident they will ultimately be exonerated, are going to feel chilled by that,” Volokh said. “Students might say ‘I don’t want to go through an investigation, I better not say anything that criticizes my classmate’s views because maybe it will happen to me next time.’”
In a statement to The Eagle, University spokesperson Elizabeth Deal wrote that “American University is guided by its commitment to the right to free expression, and encourages its students, faculty, and staff to engage in robust discourse both inside and outside of the classroom … The Office of Equity and Title IX is focused on potential violations of the university’s discrimination policies and does not investigate matters related solely to disagreements among community members based on their speech.”
At the time of publication, the complainant had not been publicly identified and The Eagle has been unable to reach out for comment.
Brezina was the only WCL student investigated that has publicly identified himself. He said that although he is unconcerned about how this will impact his passing the bar exam in the future, he is disillusioned by the University’s actions.
“Getting to a formal investigation really kind of chills free speech, because it tells people, anybody, you might be subjected to an investigation,” Brezina said. “It’s just worrying… And it sends the message that, you know, if you have a strong enough disagreement with somebody they might report that and you might be under investigation.”
Correction: This story has been updated to clarify that the character and good fitness test is not part of a state's Bar Exam, but is a part of a separate vetting that occurs prior to being admitted to a state's bar.
