March 27, 2004

College Journalists As Punching Bags

The University's nondiscrimination policy (which Volokh found here) states that "[t]he University maintains a grievance procedure incorporating due process available to any person who believes he or she has been discriminated against." This, to me, would appear to be a narrowly tailored process to advance a compelling state interest in eradicating present discrimination (since it is a complaint against some alleged actual discrimination). Obviously, in the case of free expression in a student newspaper, the "due process" hearing would be short since no discrimination has occurred. If the university did find a problem to exist, then the journalist's First Amendment claims would come into play. That one side has a First Amendment defense does not mean the University can decide before the fact that it would not follow its policy of giving a due process hearing to the complainant(s).

To be clear, what I am saying is that the University cannot sanction its student journalists consistent with the First Amendment but neither can it allow that affirmative defense to preclude another student from filing and the University from considering a formal complaint based on that student's "belie[f that] he or she has been discriminated against." The second and third items -- the mediation and the gag order -- are clearly unconstitutional actions in restraint of the rights of student journalists.

[NOTE: Unfortunately, it appears as if the Student Press Law Center's Web site is down. They should, however, have something on this.]

Professor David Bernstein follows up with a classic version from he late '80s of the university going even farther and actually suspending the student journalist in question.

Perhaps administrators should focus more on giving students a strong understanding of the benefits and burdens of the First Amendment rather than trying to suffocate it at the slightest sign of controversy.