The following piece is an opinion and does not reflect the views of The Eagle and its staff. All opinions are edited for grammar, style and argument structure and fact-checked, but the opinions are the writer’s own.
In one push of the “send” button, American University’s administration completely curtailed the previous freedom of expression policy enacted in August 2022. The policy that was effectively gutted by administration was thoughtfully curated by AU faculty, legal experts and members of the administration.
On Jan. 25, President Sylvia Burwell and other administrators released a memo that categorically bans protests inside University buildings, requires all posters to “promote inclusivity” and mandates that clubs be “welcoming to all students.” The objection to this statute is not rooted in students wanting to promote exclusivity, but rather the implications that this vague language has for students, clubs and other organizations. As stakeholders in the University, students should have the right to express dissent on campus.
In enacting this ban, the University violated its own “Formulation and Issuance of University Policies,” which states that “Responsible Executives should confer with applicable Stakeholder Groups and subject matter experts, as appropriate, to ensure that the overall impact of rescinding the Policy is considered,” which did not occur. Additionally, the ambiguity laced within this memo is intentional and will lead to the chilling of students’ speech. The “chilling effect” refers to the “phenomenon where individuals or groups refrain from engaging in expression for fear of” disciplinary action, typically occurring when a “law is either too broad or too vague,” according to the Foundation for Individual Rights and Expression.
The ban has garnered widespread attention, with notable organizations such as PEN America, FIRE and AU’s chapter of the American Association of University Professors, among others, coming out against the recent prohibition of free expression on campus. The memo was enacted after a Title VI complaint was filed against the University on behalf of Jewish and Israeli students, stating that AU has “permitted a hostile environment for Jewish and Israeli students to develop and flourish on its campus.”
This opposition suggests that these regulations are targeted to censor specific viewpoints from expressing dissent. The University has a legal obligation when someone is being targeted for their protected class to follow and enforce federal harassment laws. Students have an affirmative right to be free from harassment. This does not include witnessing demonstrations of opposing viewpoints. If student protests violated laws against harassment, AU was obligated to enforce the anti-harassment laws. Instead, it issued a blanket statement that categorically restricts free expression.
Since January, there has been understandable confusion around this ban, including what specific rights we actually lost. This lack of understanding surrounding free speech on campus is not a new concept, though. Many members of the University community lacked proper knowledge of the scope of freedom of expression prior to this. This in and of itself speaks to what a university should be doing to foster an understanding of conduct rules that carry the potential for disciplinary action if violated. The memo enacted in January amends a policy that community members did not understand already, with no guidance whatsoever for those that it affects.
There has been no communication from the University to faculty nor to students, yet there has been a charge on the Freedom of Expression Committee to answer questions that the administration can’t. The only information pertaining to its enforcement provided is that a new administrator will be hired to enforce it. Despite AU’s $33 million deficit, we will pay a new staff member to restrict students’ speech on campus. This lack of guidance is only going to perpetuate an attitude of confusion and ambiguity. When instituting such a drastic change in policy, it needs to coincide with a clear plan of implementation.
The prior policy in place — which was not solely formulated in a top-down manner by the administration — but rather in consultation with faculty and experts on the First Amendment, provides a disruption standard for dissent on campus. Before getting the right stripped away entirely, students did not have unlimited rights to express themselves and protest. Part E of the “Freedom of Expression and Expressive Conduct” policy reads:
“Freedom of Expression necessarily includes the freedom to engage in dissent including non-disruptive counter-speech or protest. In an academic environment, community members should be encouraged to question, be critical thinkers, and form their own opinions and this may take the form of dissent. The right of dissent does not include a right to silence the protected speech of others. Dissenters have the responsibility to respect the rights of others to communicate and listen. Additionally, the University has long recognized the right to protest and demonstrate, which includes the responsibility not to disrupt the University's operations or endanger the safety of others.”
The substantial disruption standard is a universally recognized concept for regulating student speech. Virtually all buildings on the University’s campus have a perpetual ambient noise; thus “disruption” is not simply being able to hear a protest on the quad from your classroom in Kerwin. Rather, a counter-speech protest must distinctively interfere with the ordinary use of buildings and prevent educational proceedings from occurring.
In short, the original free expression policy illustrated that the University values student expression, particularly your protest and dissent, but you cannot cross a certain disruption threshold. The new ban, simply put, puts forth the message that the University does not care if your protest is quieter than the noise of the line at Hissho Sushi or even silent. Protests that block pedestrian access to buildings will, in theory, be treated the same way as a student simply wearing an armband. If it’s a protest of any kind, it’s not permitted.
The ban’s language is not only problematic in its content, but the vague nature of it imposes an additional layer to its concerning nature. The community is unclear about what ambiguous language like “promote inclusivity” actually means when the same policy also states that clubs can’t promote anything that isn’t “germane” to the group’s purpose. This means that the Beekeeping Society cannot publicly support Black Lives Matter because it is not “germane” to the organization's cause. But, if they are not promoting inclusivity, they will “lose university recognition,” and, subsequently, all funding. Those two concepts are seemingly mutually exclusive. Clubs and organizations will stop weighing in on issues such as arming AUPD or pledging support for social justice matters because they are now at risk of being sanctioned by the University for actions discretionarily deemed not “germane” by an unknown administrator.
Acting Provost and Chief Academic Officer Vicky Wilkins announced a working group on free expression “to provide a space for faculty and staff to discuss and review these issues; and, where possible, offer guidance to the community.” While this is a positive step in theory, School of Public Affairs professor Lara Schwartz, founder of the Project on Civil Dialogue, sent a letter to Burwell and Wilkins announcing her exodus from the working group on the grounds that she is “unwilling to serve on a committee that revisits the possibility of limiting freedom of expression at American University.” This exemplifies the deeply concerning nature of this ban. One of our own faculty members, who had previously been integral to our freedom of expression policies, has concerns that the working group will promote the continuation of restricting expression on our campus.
The 2022 freedom of expression policy defines each element discussed, leaving no room for ambiguity. As of this year, the term “protest” has not even been defined by the University. This makes what conduct students are permitted to participate in extremely difficult to measure or enforce. What constitutes a protest? How will the University determine what is and isn’t relevant to a student organization? Conduct rules created by the University do not just enforce themselves. The vague nature of this policy is concerning to say the least. Vagueness and ambiguity are harmful tools for chilling speech, deterring students from saying anything at the risk of saying the wrong thing, which might get them into trouble. This phenomenon is extremely detrimental and will have a lasting impact on the very nature of AU. As students continue to have their speech chilled, the advocacy and change-making nature that this school prides itself on will essentially cease to exist. It should be clear to this University that dialogue and dissent, not regulation and restrictions, are the only path forward if we want to meet this highly polarized moment in our community’s history.
Alice Still is a sophomore in the School of Public Affairs and School of Communication and a columnist for The Eagle.
This article was edited by Alana Parker, Zoe Bell, Jelinda Montes and Abigail Turner. Copy editing done by Luna Jinks, Isabelle Kravis and Charlie Mennuti.
