Forced Expulsion of UW Students for Violating Free Speech Policy Could Have 'Chilling Effect' on Campuses

In an attempt to establish free-speech punishments, the University of Wisconsin Board of Regents could actually be infringing on free-speech rights, experts say.

On Friday, the Board of Regents is expected to vote on modifications to an administrative rule on free speech. If approved, students who are found to have disrupted the free expressions of others twice will be suspended and expelled on their third offense.

"It'll promulgate a chilling effect on campus," Will Creeley, senior vice president of legal and public advocacy for the Foundation for Individual Rights in Education told Newsweek. "Instead of preserving the marketplace of ideas, it may very well diminish the marketplace of ideas, and that's a net loss for everybody."

Free speech on campus continues to be a hotly debated topic with higher education administrators at the center of criticism. Allowing controversial speakers a platform draws ire from one group of critics, while canceling an event or permitting protesters to drown out a speaker makes the school a target of the other side of the discussion.

Creeley speculated that part of the reason the Board of Regents sought to implement the policy was to "send a message." A message that told the community that speakers, even those with dissenting viewpoints, were welcome on campus, a place where their ideas would be debated and heard.

"The problem is, in so doing, the policy provisions could paradoxically chill speech on campus as students rationally decide that instead of going to protest or to ask tough questions, they'll stay home because they're fearful of an overly broad disruption policy," Creeley explained.

university wisconsin free speech expulsion regents
Bascom Hall on the campus of the University of Wisconsin on October 12, 2013, in Madison. On Friday, the Board of Regents is expected to vote on a free speech policy that would require students to be expelled after violating it three times. Mike McGinnis/Getty

Under the new policy, as outlined in the Board of Regents' meeting materials, a formal investigation and disciplinary hearing would be held if a student has a formal complaint filed against them twice for engaging in "violent or other disorderly misconduct that materially and substantially disrupted the free expression of others."

The second time the student is determined to have interfered with the free expression of someone else, administrators must suspend the student for at least one semester. If it happens three times, the student must be expelled.

Rick Esenberg, president and general counsel at the Wisconsin Institute for Law and Liberty, a nonprofit public interest law firm, told Newsweek there's a "fine line" that must be drawn. On the one hand, Esenberg said, students don't have a constitutional right to physically interfere or block access to a speaker. On the other hand, the right to legitimate protest must be protected, as well.

"It's very important that when we make rules that regulate speech, they be set down beforehand so people know what they are, that they be very, very clear so they don't deter people from speaking because they don't know what they can or can't do and that they be very, very narrowly drawn to make clear that we're only addressing a certain type of disruption," Esenberg explained.

Creeley and Esenberg agreed that the mandatory sentence creates an environment in which the school is required to punish students without considering the circumstances of each incident. Instead of tailoring punishments to fit the crime, all violations would be given the same weight, resulting in a one-size-fits-all punishment. By tying the hands of the decision-makers, students who are engaged in speech that's uncomfortable or challenging could get swept up in the policy, as well.

"It's not impossible to imagine a student who asks tough questions to be found to be disruptive by an administrator who is overzealous or willfully misinterpreting the provision. That could be a serious problem," Creeley said.

Simply passing the policy, Esenberg explained, likely wouldn't prove sufficiently improper to warrant a facial challenge, a legal assertion that a law is unconstitutionally overbroad or vague. However, it is possible that after it's applied, a student who was suspended or expelled could file a lawsuit claiming they were punished for engaging in constitutionally protected speech.

Given the tensions between students and administrators and regents and chancellors over the past few years, Creeley considered a conflict "all but inevitable."

Along with ensuring free speech isn't being infringed upon, Creeley called to educate both students and the general public about the importance of protecting peaceful protest, as well as, the rights of people to speak and others to hear those ideas.

"The answer to speech one disagrees with has to be more speech. That's the way we move forward as a democracy," he said.