The Foundation for Individual Rights in Education, whose factual accounts I’ve always found trustworthy reports the following:
The University of New Hampshire has evicted a student from housing for posting fliers in his residential hall joking that freshman women could lose the “Freshman 15” by walking up the dormitory stairs. The public university found him guilty of violating policies on affirmative action, harassment, and disorderly conduct, and has sentenced him to mandatory counseling and probation along with his eviction. See the flier here.
In appealing his sentence, student Timothy Garneau explained that the flier was intended to make light of the common frustration with people who delay the elevator by taking it for just one or two floors instead of taking the stairs. UNH rejected his appeal, and Garneau was ordered to move out of his dormitory. Garneau reports that he is currently living out of his car. . . .
The “offensive” flier included a cartoon picture of a woman in outdated workout gear and the following message:
9 out of 10 freshman girls gain 10 – 15 pounds. But there is something you can do about it. If u live below the 6th floor takes the stairs….Not only will u feel better about yourself but you will also be saving us time and wont be sore on the eyes. [sic]
Garneau posted copies of the flier in the elevators of his dormitory, Stoke Hall. According to Garneau, a resident assistant had removed all of the fliers within less than two hours. When Garneau was approached by the Stoke Hall Director and accused of hanging the fliers, he initially denied responsibility, fearing that he would be punished harshly and embarrassed in front of his peers. However, Garneau soon admitted to posting the flier and was charged with offenses including: “acts of dishonesty”; violation of “affirmative action” policies; “harassment”; and “conduct which is disorderly, lewd.”
Within a week of the incident, and prior to his hearing, Garneau posted a written public apology for unintentionally offending others in his residential hall and apologized in person to students that he knew had complained.
At an October 8 hearing, the university found Garneau guilty of all charges. Despite Garneau’s offers to voluntarily atone for his actions through community service, social awareness projects, and other activities, the university sentenced him to immediate expulsion from student housing and disciplinary probation extended through May 30, 2006. He was also required to meet with a counselor to discuss his “decisions, actions, and reflections” about the incident, to write a 3000-word reflection paper about the counseling session, and to submit an apology letter to the residents of Stoke Hall to be published in the hall’s newspaper. . . .
The flyer is juvenile — I can certainly see why some people might be offended. And the university would be entitled, I think, either to (1) ban all posting of flyers in elevators and corridors (which are in the category of government property that is a “nonpublic forum,” in which the government may impose reasonable, viewpoint-neutral restrictions), or (2) impose a viewpoint-neutral though content-based ban on fleyrs that are genuinely “lewd” (if those terms were defined precisely enough). It could also punish students for being dishonest when questioned about flyers they posted, if it is doing so solely because the student was being dishonest, and not actually because of the flyer’s viewpoint.
But here it’s pretty clear that the university banned the flyers precisely because they expressed a viewpoint that the university found offensive — likely that women ought to care about losing weight and not being “sore on the eyes” by being somewhat overweight, or (less plausibly) that women ought to take the stairs while men take the elevator. Pretty clearly a First Amendment violation. This particular speech is hardly momentous or deeply important; but if such speech may be banned from university dorms because of its viewpoint, then it’s hard to see how other offensive viewpoints would remain protected.
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