‘No immediate threat’ to campus
A Catholic college reported a crude Post-it note to city police as a hate crime because it told students to “suck it up” in response to Donald Trump’s election.
First Amendment experts say that while Wisconsin’s Edgewood College can punish students for even constitutionally protected speech, it cannot seek to use police to punish such speech as a crime.
And the police agreed. A spokesman for the Madison Police Department told The College Fix Thursday that a parole officer and detective already looked into the report and found “no immediate threat.”
Hence, there’s no further case activity and “it’s not an open investigation,” the spokesman said.
Contact these five campus offices with more information
The controversy started after an Edgewood student encouraged others to write their feelings about the election on notes and place them on a public table, Campus Reform reported, citing a letter to the community from Vice President for Student Development Tony Chambers.
One such note mocked students who were upset about Trump’s victory. It read “Suck it up pussies!” and was placed on a window inside the Office of Student Diversity and Inclusion, rather than on the public table.
— Deplorable Prod (@DeplorableProd) November 27, 2016
Chambers’ letter said the note was “hateful and harmful toward members of our community,” violating every “core” value at the Dominican institution.
He called the note posting “a targeted act of cowardice and intimidation” that required a broad college response.
Staff across campus security, student conduct, human resources, Title IX enforcement, and “diversity and inclusion measures” gathered together and determined the note to constitute a hate crime under the federal Clery Act and “state law.” It was reported to the Madison Police Department.
Chambers asked anyone who had information on the “Suck it up” posting or “any other incident” to contact one of at least five campus offices.
Not a false crime report unless college lied about the facts
UCLA Law Prof. Eugene Volokh, a First Amendment scholar, wrote in The Washington Post that it was ridiculous for Edgewood to get the police involved, “chiefly because there’s no crime, though also because the recipients weren’t targeted based on their race, sex, religion, sexual orientation, or the other bases that are generally required for the legal label ‘hate crime’ to apply.”
Volokh delineated between the college’s rights and what it was asking police to do, in an email to The Fix.
“[T]hey can discipline students, or even expel them, for speech that is constitutionally protected” because Edgewood is not bound by the First Amendment, he said.
“But police departments are bound by the First Amendment — they can’t arrest or prosecute someone for a supposed ‘hate crime’ that consists solely of protected speech,” Volokh continued. “Edgewood College thus seems to be trying to get the government to punish speech that the government has no power to punish.”
Edgewood can’t get in legal trouble for reporting protected speech as a crime, he clarified in another email, “so long as the school accurately reported the facts as it believed them to be.”
Police recognize that “your assertion about what law was supposedly broken … are just your opinions,” he said: “You are only punishable if you lie about the facts.”
— Volokh Conspiracy (@VolokhC) November 25, 2016
Hans Bader, a former Department of Education lawyer, also said that police might violate the First Amendment if they arrested even a private school student for on-campus speech.
In a post for Liberty Unyielding, Bader cited a 2005 ruling by the 8th U.S. Circuit Court of Appeals that found “collusion between the government and a private employer to restrict speech violated First Amendment and rendered the private employer liable, too.”
Edgewood Director of Diversity and Inclusion Tony Garcia did not respond to a phone call from The Fix.
Glenna Scholle-Malone, director of student diversity and inclusion, told The Fix in a phone interview that the college can’t release information to the public now. She declined to connect The Fix with Garcia.