The Volokh Conspiracy - Breach of Promised Anonymity and Student Free Speech Violation?

A New York Times Ethicist column discusses this, but here's a more detailed account:

A student who wrote disparaging comments on an anonymous course evaluation now finds himself facing University sanctions.

Brian Beck, a landscape architecture major from Gordon, was found in violation of three University Code of Conduct regulations in a decision announced last week by University Judiciary. Beck was found in violation of the code due to:

• Disruption of the teaching evaluation process

• On grounds of multiplicity

• Harassment based on presumed knowledge of the associate professor's sexual orientation

Beck's violations stem from comments made on two course evaluations in Joseph Disponzio's History of the Built Environment course sequence.

On the first course evaluation, Beck was asked "What aspects of the course could use improvement or change?"

Beck wrote: "Joe Disponzio is a complete asshole. I hope he chokes on a dick, gets AIDS and dies. To hell with all gay teachers who are terrible with their jobs and try to fail students!" ...

[On the second course evaluation,] Beck answered the evaluation question "What were the most helpful/useful aspects of the course?" with "Joe Disponzio needs help with his issues dealing with homosexuality. Fags are not cool and neither are ney [sic] yorkers."

After comparing the two evaluations to exams from the class, Disponzio said he was able to identify the student he thought made the comments....

A letter was mailed to Beck's home address on Sept. 6 stating "it is alleged that Mr. Beck wrote threatening comments on course evaluations that were directed to a faculty member. Such comments indicated that he wanted the faculty member to die. Also the comments may have violated the University's anti-discrimination and harassment policy in that comments made may have been discriminatory regarding sexual orientation." ...

The University retained a handwriting document examiner to confirm the author of the evaluations. Roy Fenoff, a 2004 graduate of the University and forensic document examiner, was faxed the evaluations in question and Beck's class exams. He "concluded that the questioned writing was indeed authored by Brian Beck." ...

Beck's punishment includes writing a 1,200-word essay on how his remarks affect the Lesbian, Gay, Bisexual, and Transgender community and interact with a greater intolerance of the campus LGBT community, a letter of apology to Disponzio including constructive criticisms of his teaching style, and meeting with Michael Shutt, assistant dean of students, to discuss completion of SafeSpace training or other programs deemed appropriate....

The student's comments are obviously appalling -- but so is the punishment for the student's speech. The statements are not, I think, constitutionally unprotected threats; sometimes expressing a hope that someone would die may be seen as an implicit threat that the speaker will kill the person, but that doesn't seem to be so here.

But in any event, the university doesn't even claim that the student is punished solely because of the alleged threat: It expressly says that part of the reason for the investigation (and, one can infer, the ultimate punishment) was the anti-gay viewpoint of the statements. That's a pretty clear violation of the First Amendment.

The loss of confidentiality is troubling, too. Students were apparently assured that their comments are confidential. ("According to the Franklin College evaluation Web site, 'the Web-based course evaluation application has been designed to encourage candor. Your identity will not be associated with any of your responses.'") And while a student can reasonably infer that there'd be an exception for comments that really are death threats or evidence of crime, I doubt that a reasonable student would have assumed that the promise would be lifted when the statements expressed disfavored viewpoints.

And of course all this will leave students guessing when else they will be identified (and punished) for their evaluations -- what if a student, for instance, faults a professor for belonging to a religious group that the student thinks is irrational or evil (Scientology, extremist Islam, fundamentalist Christianity, and the like)? What if a student accuses a professor of being a "feminazi" or a "male chauvinist," and the university chooses to interpret that as resting partly on the professor's sex as well as the professor's views.

Finally, a hypothetical: Say that instead of faulting the professor in a class evaluation, the student had publicly written "comments [that] may have been discriminatory regarding sexual orientation" about a professor in a newspaper article, or in a blog post? I take it that under the University of Georgia's view, writing such a newspaper article would lead to discipline, too, right?

Perhaps a university could distinguish targeted speech sent (especially repeatedly) to the insulted person alone, such as insulting phone calls or e-mails. (I have touched on this question in the workplace context here, and there is some First Amendment precedent that may support this.) But both the student evaluation and the hypothetical newspaper article are speech conveyed to others (future students or administrators as to the evaluation, current students and other readers as to the newspaper article), and are entitled to full First Amendment protection. The University of Georgia does not, however, seem willing to give them this protection.

Thanks to Joel Grossman for the pointer to the New York Times piece.

	[Eugene Volokh, January 24, 2008 at 1:35pm] Trackbacks Breach of Promised Anonymity and Student Free Speech Violation? A New York Times Ethicist column discusses this, but here's a more detailed account: A student who wrote disparaging comments on an anonymous course evaluation now finds himself facing University sanctions. Brian Beck, a landscape architecture major from Gordon, was found in violation of three University Code of Conduct regulations in a decision announced last week by University Judiciary. Beck was found in violation of the code due to: • Disruption of the teaching evaluation process • On grounds of multiplicity • Harassment based on presumed knowledge of the associate professor's sexual orientation Beck's violations stem from comments made on two course evaluations in Joseph Disponzio's History of the Built Environment course sequence. On the first course evaluation, Beck was asked "What aspects of the course could use improvement or change?" Beck wrote: "Joe Disponzio is a complete asshole. I hope he chokes on a dick, gets AIDS and dies. To hell with all gay teachers who are terrible with their jobs and try to fail students!" ... [On the second course evaluation,] Beck answered the evaluation question "What were the most helpful/useful aspects of the course?" with "Joe Disponzio needs help with his issues dealing with homosexuality. Fags are not cool and neither are ney [sic] yorkers." After comparing the two evaluations to exams from the class, Disponzio said he was able to identify the student he thought made the comments.... A letter was mailed to Beck's home address on Sept. 6 stating "it is alleged that Mr. Beck wrote threatening comments on course evaluations that were directed to a faculty member. Such comments indicated that he wanted the faculty member to die. Also the comments may have violated the University's anti-discrimination and harassment policy in that comments made may have been discriminatory regarding sexual orientation." ... The University retained a handwriting document examiner to confirm the author of the evaluations. Roy Fenoff, a 2004 graduate of the University and forensic document examiner, was faxed the evaluations in question and Beck's class exams. He "concluded that the questioned writing was indeed authored by Brian Beck." ... Beck's punishment includes writing a 1,200-word essay on how his remarks affect the Lesbian, Gay, Bisexual, and Transgender community and interact with a greater intolerance of the campus LGBT community, a letter of apology to Disponzio including constructive criticisms of his teaching style, and meeting with Michael Shutt, assistant dean of students, to discuss completion of SafeSpace training or other programs deemed appropriate.... The student's comments are obviously appalling -- but so is the punishment for the student's speech. The statements are not, I think, constitutionally unprotected threats; sometimes expressing a hope that someone would die may be seen as an implicit threat that the speaker will kill the person, but that doesn't seem to be so here. But in any event, the university doesn't even claim that the student is punished solely because of the alleged threat: It expressly says that part of the reason for the investigation (and, one can infer, the ultimate punishment) was the anti-gay viewpoint of the statements. That's a pretty clear violation of the First Amendment. The loss of confidentiality is troubling, too. Students were apparently assured that their comments are confidential. ("According to the Franklin College evaluation Web site, 'the Web-based course evaluation application has been designed to encourage candor. Your identity will not be associated with any of your responses.'") And while a student can reasonably infer that there'd be an exception for comments that really are death threats or evidence of crime, I doubt that a reasonable student would have assumed that the promise would be lifted when the statements expressed disfavored viewpoints. And of course all this will leave students guessing when else they will be identified (and punished) for their evaluations -- what if a student, for instance, faults a professor for belonging to a religious group that the student thinks is irrational or evil (Scientology, extremist Islam, fundamentalist Christianity, and the like)? What if a student accuses a professor of being a "feminazi" or a "male chauvinist," and the university chooses to interpret that as resting partly on the professor's sex as well as the professor's views. Finally, a hypothetical: Say that instead of faulting the professor in a class evaluation, the student had publicly written "comments [that] may have been discriminatory regarding sexual orientation" about a professor in a newspaper article, or in a blog post? I take it that under the University of Georgia's view, writing such a newspaper article would lead to discipline, too, right? Perhaps a university could distinguish targeted speech sent (especially repeatedly) to the insulted person alone, such as insulting phone calls or e-mails. (I have touched on this question in the workplace context here, and there is some First Amendment precedent that may support this.) But both the student evaluation and the hypothetical newspaper article are speech conveyed to others (future students or administrators as to the evaluation, current students and other readers as to the newspaper article), and are entitled to full First Amendment protection. The University of Georgia does not, however, seem willing to give them this protection. Thanks to Joel Grossman for the pointer to the New York Times piece.