The College Fix

‘Speech perceived as violent, hateful, or offensive’ is protected under First Amendment, FIRE lawyer says

Legal experts have raised questions about the constitutionality of certain diversity, equity, and inclusion goals at North Dakota State University, including a “statement of inclusivity” opposing “violence in language or in action.”

Attorney Zach Greenberg, a fellow with Foundation for Individual Rights and Expression, expressed concerns about the vague language in the statement, saying “’Violence in language’ could be interpreted a variety of different ways.”

“If it’s interpreted to mean offensive speech, and the statement is enforced to stifle such speech, then this would pose free speech issues. It depends on how the statement is interpreted and enforced,” Greenberg told The College Fix in a recent email.

The diversity, equity, and inclusion statement from the public university’s College of Business aims to help students “feel safe” and provide “space to be their own person.”

The statement emphasizes that the college works to make sure “diversity” and “inclusion” are incorporated both in and out of the classroom. Additionally, it “condemn[s] acts of hate and bigotry as antithetical to the College’s core values.”

“We stand opposed to violence in language or in action, and we see intolerance as a threat to the mission of the College of Business, as we are committed to intellectual and cultural growth of our students, team, and community,” the statement reads.

However, the College of Business did not specifically state what would suffice as “violence in language” or what could potentially go against its core principles. And it did not respond to The College Fix‘s questions about the statement.

The Fix reached out to Kay Hopkins, the site director for the College of Business, and the university’s media requests team for clarification of what is deems to be “violence in language.” Neither responded to multiple emails and a phone call over the past two weeks.

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Meanwhile, Greenberg at FIRE told The Fix colleges can punish students for “unprotected true” threats or harassment, but they cannot punish “speech perceived as violent, hateful, or offensive,” because that would violate the First Amendment.

“While the university can put forth its own statement about speech it dislikes, it should make clear that students and professors can express violent language,” Greenberg said.

In addition to its DEI statement, the College of Business’s strategic goals to promote “Diversity, Inclusion, and Tolerance” also prompted concerns from another legal expert.

One goal is to “measure baseline enrollment rates for female business students and develop strategies and programs to bring enrollments up to University average for CoB programs.”

The College Fix reached out to Edward Bartlett, president of Stop Abusive and Violent Environments, to ask if a college can legally aim to increase enrollment of one sex. SAVE advocates for due process and fairness on college campuses.

Bartlett said the college recruitment strategy for female students is a “clear violation” of Title IX, “which bans all forms of sex discrimination in schools.”

When asked if there are legal ways a university can encourage more female students to participate in a specific program, Bartlett told The Fix, “The Fourteenth Amendment assures equal protection to all persons, both male and female.

“Overall, NDSU should be more focused on recruiting male students, rather than achieving arbitrary gender quotas for just female students,” he said.

Other goals of the college include raising awareness of DEI through events and special guest speakers, and developing a “DEI Statement that highlights the work our College already does in this important space and communicates our work to the community.”

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IMAGE: North Dakota State University/Facebook

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