Can’t act on post, UAFS says

Chancellor notes free speech rights of incoming student

An incoming freshman at the University of Arkansas at Fort Smith will not be disciplined by the university after stating on social media that street protesters in front of her vehicle would be struck, the school’s top administrator said.

UA-Fort Smith Chancellor Terisa Riley told students in a campus message June 19 that posts “may be offensive and show clear inconsistencies with our core values,” but that the First Amendment protects the student’s statement.

“In order to take any further action through our Student Code of Conduct, the content would have to constitute a ‘true threat’ in the eyes of the law. In essence, because the post did not identify a particular protest that was being held or target a particular individual, the post was considered rhetorical hyperbole, not a true threat,” Riley said.

Public demonstrations have been held in recent weeks in communities across the country and in Arkansas — including in Fort Smith — to denounce racism and police brutality. At some demonstrations, protesters have blocked vehicle traffic on streets and highways.

Riley said she and another administrator contacted attorneys with the UA System after receiving complaints earlier this month about social media posts from the student, who was not identified by name. Riley said she previously convened a Social Media Complaint Review Task Force, which reviewed the recent complaints.

“The [task force] members indicated that there was particular concern about a post that caused many individuals to be fearful of student safety when the student stated that if protesters stood in the street, in the way of her vehicle, she would hit them,” Riley said.

After contacting the UA System attorneys, it was determined “we had no legal recourse due to the First Amendment’s protection of Freedom of Speech,” Riley said.

Riley described a “duty” as a public university to uphold free speech rights but also called it “incredibly difficult” to not take action “in a time when our institution hopes to stand in solidarity with our Black students, faculty, and staff.”

“I cannot fathom why anyone would post content on social media that concerns and angers future classmates and UAFS community members,” Riley said. “As I said in a previous message: We have freedom of speech, but we are not free from the consequences of our speech. I am obligated to uphold the right of the individual to post this material, but I do not have to respect or reward it. Our core value of inclusion means that we are open to all students, no matter their opinions or ways of expressing them.”

Riley again referred to free-speech protections when asked by the Arkansas Democrat-Gazette whether the university considered rescinding the student’s admission offer.

“Though rescinding admission is a sanction that could be administered after due process by the student conduct board, the posts were identified as protected speech and thus not submitted to the conduct board for review,” Riley said in a statement.

The UA-Fort Smith Black Student Association said on Twitter that the incoming student’s posts are “hateful, disgusting and pose a threat.”

The message asked UAFort Smith faculty and staff members to “find ways to show us exactly how much they value and support us.”

Black students made up about 4% of the student population last fall, or 223 out of 6,229 undergraduates, according to UA-Fort Smith data.

Several universities in recent weeks have issued statements about investigating objectionable social media posts made by current or incoming students.

More than 21,000 signatures have been submitted as part of an online petition asking the University of Arkansas, Fayetteville to expel two students over a video that refers to George Floyd, the black man whose death May 25 in Minnesota while in police custody has been a driving force in the recent protests.

The video described in the online petition seemingly likens an aspect of Floyd’s death — having a police officer’s knee pressed against his neck — to a method for hazing. UA-Fayetteville officials have condemned the video as mocking Floyd’s death and said it is under investigation, while also stating that federal law prohibits the release of student records.

“Public universities across the country are being put in this position as more and more students are being outed, as it were,” said Clay Calvert, a law professor at the University of Florida Levin College of Law.

When it comes to speech, universities can take action if a current student makes a threat or harasses another student, Calvert said. Based on Riley’s description, Calvert said, he agrees that the incoming UA-Fort Smith student’s post is not a true threat.

Calvert said free speech protections mean that if an enrolled student on a personal account “uses racist, offensive or sexist language in the context of talking about some matter of public concern, they’re going to be protected and the university is not going to be able to expel that student.”

Calvert said there are differences between public and private universities, and private universities generally are able to take more action.

Private universities including Xavier University in Cincinnati and Marquette University in Milwaukee have rescinded admissions offers in response to social media posts, according to published reports.

Calvert said that for public universities, the law is “murkier” if a student is not yet enrolled.

“There is something called institutional academic freedom,” Calvert said. He referred to a 1957 U.S. Supreme Court ruling in a case known as Sweezy v. New Hampshire.

Though it’s “not rock solid precedent” when it comes to rescinding an admissions offer, Calvert said, the case suggests that a public university has the freedom to choose the students that it wants to teach.

“A public university is going to have a much more difficult time expelling an enrolled student than it will rescinding an offer of admission to a student who has not yet started taking classes,” Calvert said.