Last year Casey started the tradition of completing an NCAA bracket based on how well the universities protected the constitutional rights of their students. And Heather and Jeremy have continued this tradition by covering the Southeast and East Regionals, respectively. Of course, Casey’s original rules still apply, though Jeremy’s new rule is—in the eyes of this Tarheel fan—a long overdue addition (even though Senator Jesse Helms once remarked—correctly—that if the Soviets ever invaded America, they would feel at home in Chapel Hill). However, without further ado, here are the First Amendment picks for the Southwest Regional.
University of Kansas v. University of Richmond
In this matchup, the fact that the University of Richmond is private gives it an initial edge over the public University of Kansas. But as Richmond is secular, this distinction hardly tips the First Amendment scales.
Both schools earn FIRE’s red light rating. For example, Richmond prohibits “inappropriate behavior or expression,” which is hardly a model of clarity and causes students to steer well clear of anything anyone might consider “inappropriate.” And the speech code in its sexual harassment policy prohibits speech that might create a “hostile, intimidating, or offensive environment.” While this language is hardly unique to Richmond, other harassment policies do not apply unless the speech is “sever[e] and/or persisten[t],” which mirrors the Supreme Court’s standard for harassment guidelines. So its failure to include such language in its sexual harassment policy is a strike against the school’s First Amendment fortunes.
Kansas features similar policies, including several that prohibit comments that create a “hostile, intimidating, or offensive environment.” Its housing guidelines prohibit students from doing anything that “purposely humiliates another person” and from “making degrading comments.” Such ambiguous, in-the-eye-of-the-beholder rules cover a wide spectrum of speech that the First Amendment protects.
However, Richmond’s “Bias Incident Protocol” tips the balance in the Jayhawks’ favor. At Richmond, anyone who thinks he might be subject to a “bias incident” can report it to the “Bias Response Team” for “support and guidance.” And what is a “bias incident”? Is it discrimination? No. Is it a crime? No. Its definition has to be read in full to be appreciated:
[A]cts that do not appear to constitute a crime or actionable discrimination, but which may intimidate, mock, degrade, or threaten, individuals or groups and which one could reasonably conclude targets a member or group within the University community because of that individual or group’s actual or perceived age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, immigration or citizenship status, marital status, national origin, race, religion, religious practice, or sexual orientation.
So what is a “bias incident”? Virtually any expression that any hearer does not like for any reason, which also happens to be the very kind of speech the First Amendment is designed to protect. So in this matchup, the First Amendment pick goes to the Kansas Jayhawks.
Virginia Commonwealth University v. Florida State University
This contests pits a school FIRE has not ranked (VCU) against one that earned its red light rating (FSU). The Seminoles earned this distinction largely because of their numerous speech code policies that prohibit speech that creates “an intimidating, hostile, or offensive environment.” While these policies punish a broad spectrum of protected speech, Florida State has also turned back two attempts to derecognize or defund religious student groups because they limit leadership to students who agree with the group’s religious views. And under the principle that “practice beats policy,” this weighs heavily in the Seminoles favor.
Like Florida State, VCU prohibits speech that “of a hostile, intimidating, or offensive nature.” While prohibiting “disruptive behavior,” its housing policy prohibits creating “emotional” disturbances, which could conceivably cover anything, including a fellow breaking up with his girlfriend. (See here at page 31.) And while the First Amendment guarantees students the freedom to distribute literature in the outdoor areas of campus, VCU either ties them to informational tables that can only be placed in limited areas or forces them to reserve “literature distribution areas.” (See here at page 19.) All of this is especially troubling since so many Virginia universities have “gone green” by reforming their policies to comply with the First Amendment.
In short, Florida State’s history of respecting religious groups compensates for its red light rating, especially since VCU has similar policies and should have learned from its neighboring schools. So the First Amendment picks the Florida State Seminoles.
University of Kansas v. Florida State University
Moving from the Sweet Sixteen to the Elite Eight, Florida State’s history of respecting religious groups again compensates for its policies and gives it the advantage over Kansas’ unconstitutional policies. So the First Amendment prediction is that the Seminoles will tomahawk the Jayhawks to earn a trip to the Final Four.
Check out the Sweet Sixteen of Liberty: Southeast Region
Check out the Sweet Sixteen of Liberty: East Region