Q&A with Equal Opportunity Programs: Understanding limits of free speech on social media at USC

Kailee Kokes | The Daily Gamecock

In two separate incidents this year, USC students "were no longer enrolled" according to the administration following Snapchat stories in which those students made racist remarks. The students’ enrollment statuses had changed within 48 hours of the social media posts — one in January and one in June — both of which had attracted attention from students and others. 

The Daily Gamecock asked Equal Opportunity Programs (EOP) to provide guidance for students about the policies concerning speech of all types and what consequences students may face if they are reported for language, verbal or written, that is considered racist or harmful in other ways.

University spokesperson Jeff Stensland responded to The Daily Gamecock's questions over email.

On Jan. 22 and June 1, the university made statements about the status of two students’ enrollment, stating that they are “no longer enrolled.” Does this phrase apply to both students who are suspended and students who are expelled? 

The Family Educational Rights and Privacy Act (FERPA) prohibits the university from disclosing decisions reached by the Office of Student Conduct; we are permitted to make statements regarding an individual’s enrollment status.  Even if a student were to be suspended or expelled by the university due to a disciplinary finding, we would have to keep that information confidential to remain in compliance with federal laws regarding the confidentiality of student educational records.  In situations like the ones you posed, some students may choose to voluntarily separate from an institution of higher education even if their activity might be considered constitutionally protected expression.

Both incidents that happened in January and June were made on Snapchat: One was on a private Snapchat story and another on a public story. What impact does the privacy of the post have on the investigation?

Whether the expression occurs in a private or public social media post—and even if offensive--unless it crosses certain boundaries, it may be protected by the First Amendment. However, there are certain behaviors, such as direct threats that target an individual, that are prohibited by law, no matter where they might take place. For example, if expressions on social media by one student is directed toward another student based upon a protected class, such as race or gender, which is so sufficiently severe, pervasive or persistent that it interferes with or limits the ability of the student it is directed toward to participate in or benefit from programs, services  or activities provided by the university, those expressions would not be protected by the First Amendment.

Both students were also “no longer enrolled” within almost two business days of the screenshots circulating on social media. On average, how long does it typically take for the decision for a student to be “no longer enrolled” after the bias report is filed? 

The speed of a disciplinary proceeding will differ based on the course of action selected by the student (i.e., administrative resolution versus a Judicial Council hearing). Again, there are situations where a student may voluntarily choose to separate from the institution whether or not the individual’s actions may be a disciplinary violation.

Screenshots with bias circulate on social media. How does that affect the decision making of the EOP Office when investigating the complaint?

EOP is governed by policies and procedures that it follows for each reported situation and the office follows the same procedures for cases that receive media attention and those that do not.

How does the EOP delineate between free speech and hate speech? What about on private platforms?

The analysis involves a determination of whether a university policy was violated, and whether the expression at issue is protected by the First Amendment.  Based upon the courts’ interpretation of the First Amendment, certain expressions, even if contrary to the values of the institution, may be protected by the First Amendment.  Again, there are several types of behavior that are not protected by the First Amendment, such as direct threats of violence, fraud, child pornography, and inciting imminent violence.  When reports are filed with the EOP office, it evaluates each situation in an effort to determine if the expression in question is protected by the First Amendment.

If every case is treated on a case-by-case basis, then how does a student know they are in violation of the Code of Conduct?

EOP communicates the result of their investigation to each student; likewise, the office of student conduct holds an individual meeting with each student referred to that office.

How does the EOP and Student Conduct and Academic Integrity draw the line between a teaching moment and blatant hate?

The Office of Student Conduct views every conversation with a student to be a “teaching moment.”  Again, the analysis involves whether the action at issue would be expression protected by the US Constitution.  There are arguments that exist that hate speech does not warrant constitutional protection. However, as a state institution, UofSC must follow existing law.  

Can you give me a hypothetical example of a situation that justifies expulsion?

If someone were to engage in expression that is not protected by the First Amendment, such as making a direct threat to another individual, then that is behavior where a disciplinary sanction could be imposed.

What differentiates situations when the outcome of an investigation is expulsion versus suspension? Can you tell me a hypothetical scenario?

A variety of factors are weighed in every disciplinary proceeding.  The Office of Student conduct functions from an educational focus, rather than a punitive lens.  The goal is that our students can learn from their mistakes and become productive citizens and members of the Gamecock community.  If there is a perception that the student poses a risk to the community, then expulsion would certainly be considered.

The Code of Conduct states that the “severity of the sanctions will align with the severity of the offense, community standards and will increase with subsequent violations of the Code of Conduct.” Who decides the severity? What community standards?

Decision on sanctions reached by the Office of Student Conduct are either issued by the administrator involved if the student accepts responsibility and accepts the sanctions offered. Each student at UofSC also has the option to have the case adjudicated by the Carolina Judicial Council where the decisions are made by a panel of trained students, faculty, and staff.  The extent of due process rights afforded by UofSC ensure that no student can receive an arbitrary disciplinary sanction.

How are reports of bias based on sex, ethnicity, religion, gender, gender identity or disability investigated? Is this different from reports of bias based on race?

Race is one of several classes protected by law. EOP investigates allegations of unlawful harassment and discrimination that result from one’s protected class in the same manner, regardless of the protected class.


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