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President John Broderick seems to think that this peaceful, off-campus expression directed to “baby girls” and “Moms” violates school policy. In a statement posted on Facebook, he said:

I said at my State of the University address that there is zero tolerance on this campus for sexual assault and sexual harassment. This incident will be reviewed immediately by those on campus empowered to do so. Any student found to have violated the code of conduct will be subject to disciplinary action.

Broderick included a link to a YouTube video made by student leaders this weekend, reiterating that crass banners somehow equal sexual assault. The school also reshared its earlier “It’s On Us” video against sexual assault.

Broderick’s lawyers must be fervently hoping for one of two results: 1) the school quietly decides that any students involved with the banners didn’t violate any school policy and that no one should be punished; 2) anyone who is punished decides that they would suffer negative public attention if they sued the school for violating their constitutional rights.

That was the strategy that University of Oklahoma President David Boren seemed to be following when he unilaterally expelled frat members for their role in a racist chant on a bus.  And it worked.

Popehat contributor Adam Steinbaugh agrees that Old Dominion is inviting litigation with this threat:

The threat that an administrator of a public institution, apprised that offensive speech will be removed and punished, is concerning, whether that speech takes place on campus, and more so when it takes place off campus.  Were Old Dominion to follow through on its threat, it would certainly run afoul of the First Amendment.

Punishing speech is a direct attack on education and actually endangers students, he continues:

Offensive speech can often be a platform from which to signal to the broader world the boundaries of acceptable conduct and discourse. A racist song passed down through generations of fraternity members hell-bent on preserving ‘tradition’ reminds us that racism is alive and well, and provides an opportunity to educate the broader world about itself and its lasting, deep flaws. …

Cretins hanging a banner don’t meet that level [of “severe, pervasive, and objectively offensive” conduct], and pledging to remove isolated incidents offensive speech — on or off-campus — is vague at best, principled only in motivation, and would work to deprive the campus community of an opportunity to learn about its constituents.

Moreover, at the end of the day, requiring the removal of offensive banners won’t change the underlying behavior.  It just makes it less likely that people will know who these guys are.

Steinbaugh notes that ODU’s sexual harassment policy – which bans “jokes” of a “sexual nature” and “obscene gestures” – earns a yellow-light rating from the Foundation for Individual Rights in Education.

He’s also correct that ODU is almost certainly promising a crackdown on free expression “to avoid bad press and uncomfortable criticism” more than to protect students from sexual harassment.

It may be too much to hope that the Sigma Nu chapter or its members file suit against ODU for chilling their speech, even if the school doesn’t follow through with any punishment. They would risk negative media attention to further associate themselves with boorish banners.

But they should. Increasingly, the only thing that colleges take seriously is threats to their bottom lines. If litigation is more expensive than respect for the First Amendment – as it was for Valdosta State University just last month – maybe schools will side with the latter.

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