On March 13, during a talk with Florida International University President Jeanette Nu帽ez and former baseball star Alex Rodriguez, a group of students stood up, unveiled shirts that said 鈥淚CE OFF FIU鈥� and then walked out of the room a few minutes later.
Seven of those students 鈥� silently protesting the school鈥檚 voluntary collaboration with immigration enforcement 鈥� have since been charged with a violation of campus policy: They expressed their opinions indoors.
Katya Tripathi, one of the students facing disciplinary charges for the action, told SA国际传谋 that she learned she was being charged in an email nearly a month after the silent protest. She was studying for her finals at the time.
鈥溾�奍t was completely silent. All we did was reveal our shirts and stand up for a few minutes, and after that we left of our own volition, of our own free will,鈥� Tripathi said.
A disciplinary hearing for the charges is set to take place this Friday, on Juneteenth. The federal holiday is not recognized by the state government.
The students are specifically accused of violating a on expressive activities on campus, particularly a section that says 鈥渆xpressive activities are prohibited inside University buildings.鈥� The stated reason for the regulation is to 鈥減revent disruption鈥� on campus.
In an email included as part of the evidence in the case, Jehnny Rivera, FIU鈥檚 executive director of the Office of University Protocol, Ceremonies, and Events estimated the students stood for 鈥渁pproximately 3-5 minutes.鈥� Writing to an investigating officer, Rivera added that the short protest 鈥渄id not disrupt the event, and the speakers were able to continue their discussion. No other attendees approached me directly to raise concerns about the incident.鈥�
Since there was admittedly no disruption of the event, Tripathi feels that her right to speak her mind on campus is being directly attacked because of the message she carried. Political groups of all types operate on campus, she noted, and yet they have never been told they cannot express themselves indoors.
鈥溾�奍 just feel really disappointed and as if my own free speech is being restricted because of my opinions on what FIU has been doing,鈥� Tripathi said. 鈥淚鈥檓 really disappointed in FIU right now.鈥�
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SA国际传谋 asked FIU why those who applauded for Nu帽ez and Rodriguez at the event were not similarly disciplined; a round of applause is expressive activity, but unlike a silent protest, applause creates noise.
In a statement sent after publication, FIU senior director of media relations Madeline Bar贸 wrote that school policy "prohibits demonstrations and protests from occurring inside its buildings, classrooms, and residence halls; all of which are spaces intended for instruction, study, reflection, group discussion, research, administrative functions, and other University activities and operations."
She wrote that the regulation is "clearly posted and articulated to our community," and that "it allows for ample alternative locations for expressive activity, including outdoor areas of campus."
"Most importantly, the University administers these viewpoint neutral policies consistently and in accordance with the First Amendment and state and federal law," she said.
The issue facing the seven FIU students is a straightforward attack on freedom of speech, said Adam Saper, a staff attorney at the Community Justice Project, a local non-profit that is representing the students pro-bono.
The case law is so clear that the university cannot discipline the students that Saper told SA国际传谋 he is in disbelief that the school is moving forward with the charges. He said it is a matter of Law 101, and that he explained so much to university attorneys during a recent hearing.
鈥溾�奍 turn to the lawyer, the office general counsel guy who's there, and I go, 鈥楬ey, man. Like, day one, class one, law school 鈥� you remember the black armbands case? You're a public school. You can't discipline a student for non-disruptive activity,鈥�" said Saper.
In 1965, students at a public high school in Des Moines, Iowa, wore black armbands to protest the Vietnam War. The school had previously banned wearing the armbands, and threatened to suspend any student who did so. Five students who wore the armbands were suspended.
The resulting U.S. Supreme Court case, Tinker v. Des Moines, is one of the landmark free speech decisions of the 20th century. In a 7-2 decision, the nation's highest court ruled against the school district, saying that students and teachers do not 鈥渟hed their constitutional right to freedom of speech or expression at the schoolhouse gate.鈥�
Simply wearing an armband did not cause any disruption of the school, the court ruled 鈥� it was an issue of 鈥減ure speech.鈥�
Saper said there are 鈥渁lmost identical鈥� parallels between the two cases, and that in both cases students only wanted to 鈥渟peak out against the establishment of their parents, of the school, of the administration, of those in power.鈥�
Students of the 鈥溾�� group on campus had previously pushed to meet President Nu帽ez and FIU police chief Alexander Casas to discuss campus immigration policies, but neither would meet with them. Saper said the only other way students had to express themselves directly to the duo was to mount the silent protest.
To make the case against the seven students even more confounding, FIU鈥檚 of 鈥渆xpressive鈥� activities specifies that those activities are 鈥減rotected under the First Amendment.鈥�
鈥淭hey're saying you are not allowed to exercise your First Amendment. You're not allowed to express yourself inside a university building,鈥� said Saper. 鈥淭his is the reading that they are using to prosecute these kids.鈥�
FIU can create any policy on student conduct that it wants, said Saper, but if the rules violate the U.S. Constitution, they should be disregarded and never enforced. Relatively recent cases in Florida illustrate this dynamic.
In 2008, the Northern District of Florida federal court that it was blatantly unconstitutional when the Holmes County school district banned students from wearing or displaying material that advocated for fair treatment of the LGBTQ community. And in 2013 the Middle District of Florida federal court that the De Soto County school district violated a lesbian student鈥檚 free speech when it suspended her for participating in a National Day of Silence in support of LGBTQ rights. In both cases, courts found that the actions did not disrupt school activities.
Notably, in the 2013 case the court ruled that because the student鈥檚 right to free speech was 鈥渃learly established at the time of the violation鈥� that district officials could not benefit from 鈥渜ualified immunity,鈥� meaning that they could be personally held liable for damages.
鈥溾�奍 don't know if FIU's Office of General Counsel has communicated that to the individuals who are conducting this disciplinary process,鈥� said Saper. 鈥淲hich is the irony of this whole thing 鈥� is they're charging the students with breaking a conduct code, but in bringing those charges, they are violating the actual law. They are violating the highest law of this land, which is our Constitution.鈥�
If sustained, students could face everything from a written reprimand to expulsion from the university, said Saper: 鈥溾�奣here's really sort of no protection for them going into this process, in that the outcome could be whatever this panel decides."
For her part, Tripathi wants to get back to focusing on her studies as a computer engineering major. She simply wants the charges dismissed. But she hopes people learn about the "oppressive things FIU is doing to its students鈥� and that the university changes its policies.
鈥淚 also hope that it draws more attention to the 287(g) agreement, and pressures FIU to end its collaboration with ICE, which is obviously our end goal and why we did that protest in the first place,鈥� she said.
This story has been updated with a statement sent by FIU after publication.
