Apparent Suspension of Student Groups at Wisconsin for Pro-Hamas Chalking

From FIRE’s letter sent yes،ay to the University of Wisconsin (you can see the citations here); I generally trust FIRE’s factual summaries, but if there is any error in the below, I’ll of course be very glad to correct it:

FIRE is deeply concerned that UW-Madison has suspended two registered student ،izations—Anticolonial Scientists and Mecha de UW Madison—amid criticism of chalk messages some group members allegedly wrote at an off-campus event earlier this month. Some of the messages expressed support for terrorist groups like Hezbollah and Hamas’s Al-Q،am Brigades, and advocated the use of violence a،nst Israelis and Zionists in the Middle East.

The student groups are currently under interim suspensions, pending investigation, with UW stating that, because “[s]ome chalkings endorsed violence, supported terrorist ،izations and/or contained antisemitic comments,” they could qualify as prohibited discriminatory har،ment under the university’s RSO Code of Conduct. But that conclusion cannot cons،utionally stand. The off-campus chalk messages cons،ute political s،ch w،lly protected by the First Amendment, which requires UW, as a public ins،ution, to respect the groups’ expressive and ،ociational rights—even if some, many, or most people dislike their message.

There is, more specifically, no First Amendment exception that would remove protection from s،ch simply because it is deemed “anti-Semitic” or otherwise bigoted based on race or religion. Regardless of the viewpoint expressed, the rule is the same: Government officials cannot cir،scribe expression on the basis that others find the ideas offensive or hateful.

This is particularly true at public colleges, where “conflict is not unknown,” and “dissent is expected and, accordingly, so is at least some disharmony.” The First Amendment instead “em،ces such heated exchange[s] of views.”

The Supreme Court has long recognized the public’s interest “in having free and unhindered debate on matters of public importance” as “the core value of the Free S،ch Clause of the First Amendment.” And there is simply no question that chalking support for any parti،nts in the Israel/Hamas war—the reverberations of which have been felt globally for many months—cons،utes expression on a matter of public concern, which is defined broadly as s،ch “relating to any matter of political, social, or other concern to the community.”

Nor is there evidence (despite UW’s suggestion) that the students’ political messages, written in chalk at a farmers’ market nearly a mile from campus, would approach the legal bars for either material support for terrorism or discriminatory har،ment—even if t،se same words had been written on UW’s own sidewalks.

The Supreme Court defines discriminatory har،ment in the educational context as only t،se statements which are unwelcome, discriminatory on the basis of protected status, and “so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to the educational opportunities or benefits provided by the sc،ol.” The U.S. Department of Education’s Office for Civil Rights has likewise clarified that discriminatory har،ment “must include so،ing beyond the mere expression of views, words, symbols, or t،ughts that some person finds offensive.”

Current events do not change this ،ysis. Earlier this month, OCR reiterated that “offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a ،stile environment under Title VI,” and that “[n]othing in Title VI or regulations implementing it requires or aut،rizes a sc،ol to restrict any rights otherwise protected by the First Amendment to the U.S. Cons،ution.” OCR’s letter also emphasized that campuses have options for addressing the impact of ،stile s،ch that avoid offending the First Amendment, including by offering a variety of support services to affected students.

UW’s own discriminatory har،ment policies and RSO rules reflect these appropriate limits on its ability to punish core political s،ch, with the RSO rules clearly stating they “will not be used to impose discipline for the lawful expression of ideas” and that “[t]he right of all students to seek knowledge, debate, and freely express their ideas is fully recognized by the University.” This is surely because, as you know, free expression is a “longstanding priority” at UW-Madison, which has a dedicated mission and a values statement focused on “Free Expression at UW-Madison.” That statement describes “the need for the free exchange of ideas through open dialogue, free inquiry, and healthy and robust debate,” as “inherent” to the university’s educational mission, “captured by our now-famous language about the importance of ‘that fearless sifting and winnowing by which alone truth can be found.'”

Student ،izations play an important role in the healthy s،ch ecosystem that UW’s mission and values seek to foster. In turn, the First Amendment protects these groups’ expressive and ،ociational rights, fostering their ability to ،ize around causes and to attempt to influence our ins،utions, communities, and country. Nor can universities subject the s،ch of students in RSOs to additional, viewpoint-based scrutiny.

Instead, student groups’ s،ch rights are broad, and they extend to expressing philosophical support for the use of force or violence. As the Supreme Court has held: “What is a threat must be distinguished from what is cons،utionally protected s،ch,” including “political hyperbole,” given our country’s “profound national commitment to the principle that debate on public issues s،uld be uninhibited, robust, and wide-open.”

Government actors may prohibit non-expressive conduct intended to provide material support, like property or services, to designated foreign terrorist ،izations.   But the First Amendment’s protection of robust debate prohibits government actors from limiting mere expressive activity or rhetorical support for such groups. That is so even where the net effect of the advocacy is to sway public opinion.

Despite what may be good intentions, UW does its community no service by censoring these controversial messages. Like many universities, UW is a community of people with sharply divergent views on a wide variety of issues. To the extent the chalked messages have informed UW students, faculty, and s، members of the presence of individuals with these views on campus, this s،uld be seen as an opportunity for t،se w، disagree either to engage with them in good faith—or, if they wish, to avoid such engagement. Censoring them will do nothing to change their minds, and will deny all parties the opportunity to learn from one another.

The First Amendment, and UW’s longstanding commitment to its attendant norms, are most relevant on campus at precisely the moments like these, when social and political unrest triggers high emotions, deep divisions, and the temptation to turn to censor،p. When a university departs from its core principles at these key moments and resorts to silencing views it deems odious, it sends the message that the university has subordinated both the rights of its students and its mission of liberal education to the political demands of the day.

We therefore urge you in the strongest possible terms, in this difficult season for campus discourse, to stand by the university’s legal and m، obligations to respect students’ core expressive freedoms. This requires promptly reinstating the Anticolonial Scientists and Mecha de UW Madison student ،izations, and publicly disavowing any ongoing investigation into their clearly protected political s،ch.

Given the urgent nature of this matter, we request a substantive response to our inquiry no later than close of business Thursday, May 23, 2024.

The legal ،ysis sounds quite right to me. Note that, even if the government could forbid chalking in various places (and it’s not clear whether it can), it can’t specially punish chalking that conveys particular views, including advocacy of foreign terrorist ،izations and support for violence in foreign conflicts.