Alabama student's First Amendment rights may have been violated over racist rant

1/26/2018

Harley Barber, seen in a screenshot from her controversial video, was expelled from the University of Alabama after making a racist rant.

The case of a University of Alabama student who was expelled for a racist rant has drawn concerns from civil libertarians, who believe that her First Amendment rights may have been violated.

On Martin Luther King, Jr. Day, 19-year-old Harley Barber published a series of videos to her Instagram account that used racial slurs and epithets, including repeated uses of the n-word.

In response to widespread outrage, University of Alabama President Stuart R. Bell released a statement announcing that Ms. Barber was no longer enrolled at the university.

“We hold our students to much higher standards, and we apologize to everyone who has seen the videos and been hurt by this hateful, ignorant, and offensive behavior,” Bell wrote in his statement. “This is not who we are. It is unacceptable and unwelcome here at UA.”

However, there is legal precedent that appears to prohibit the University of Alabama from dismissing a student for using offensive and even hateful language.

In the 1973 case of Papish vs. Board of Curators of the University of Missiouri, the Supreme Court ruled “that public universities could not punish students for indecent or offensive speech that did not disrupt campus order or interfere with the rights of others.”

The University of Alabama has declined to cite which section of its student conduct code Ms. Barber may have violated.

The University of Alabama code of conduct’s definition of harassment, which is in alignment with the Supreme Court’s definition, prohibits any discriminatory communication that is directed at an individual and is “so severe, pervasive, or objectively offensive that a reasonable person with the same characteristics of the alleged victim would be adversely affected.” But it is worth noting that, offensive as her words may have been, Ms. Barber’s comments were not directed at any particular student or formal group on campus.

Three former American Civil Liberties Union officials — Ira Glasser, former ACLU national executive director; Norman Siegel, former executive director of the New York ACLU branch, Michael Meyers, former ACLU vice president — have written Mr. Bell a letter asking him to reverse Ms. Barber’s expulsion. In addition, they suggested the university facilitate a meeting between Ms. Barber and a notable black alumnus, such as New York Giants defensive back Landon Collins, who has expressed an interest in speaking with Ms. Barber.

“It would be a more imaginative, less constitutionally dangerous, and more educational initiative,” wrote the former ACLU officials. “And if it worked, it would be redemptive, and a triumph for you and the university.”

The Foundation for Individual Rights in Education has also encouraged the University of Alabama to reconsider its decision. Ari Cohn, director of FIRE’s individual rights defense program, put it bluntly: “Expelling Harley Barber for her speech, offensive as many found it, violates the First Amendment.”

Mr. Cohn also points out that those cheering Ms. Barber’s expulsion need only look to recent history for an equally troubling example of college-endorsed speech suppression when Essex County (New Jersey) College fired an adjunct professor for defending the Black Lives Matter movement on Fox News.

If the University of Alabama chooses to not reverse its ruling, Ms. Barber is likely to have legal recourse.

“I think the student would have a strong case for suing the University of Alabama for violating her First Amendment rights,” Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Berkeley, School of Law, told Inside Higher Ed. “Her speech is protected by the First Amendment, though it is offensive and uses epithets.”

Read last week’s ‘Free Speech For Thee?’ column

Defending the rights of someone like Ms. Barber is often unpopular, even among advocates of free speech. After the ACLU chose to defend the rights of neo-Nazis to march in the largely Jewish community of Skokie, Ill., in 1977, the group’s membership dropped by 1,000 members.

Those of us concerned with civil liberties are usually among the first to condemn racist and intolerant language or behavior.

And we condemn expressions of racism because we find them morally objectionable, hurtful to friends and family, and damaging to the communities in which we live. But we also understand that to ensure our liberties, the First Amendment protects the right to express even the most abhorrent viewpoints and the use of the foulest language.

The University of Alabama was wrong to expel Ms. Barber and wrong not to protect her First Amendment rights. Most colleges and universities work hard to confront racism on their respective campuses through reasoned dialogue, but when those efforts extend to punishing someone for expressing her beliefs, repugnant though they may be, there are not only questions of legality, but also questions about the institution’s capability to sponsor genuinely productive conversations about race and racism.

Suffice it to say that when the University of Alabama violated Harley Barber’s right to free speech, it made it much more difficult to come to a real and meaningful understanding about racism on the Tuscaloosa campus, compounding the error of Ms. Barber’s ways, to the detriment of us all.

Contact Will Tomer at wtomer@theblade.com, 419-724-6404, or on Twitter @WillTomer.