The president of the University of North Dakota has rejected student demands for a “zero tolerance” policy on offensive speech.
The demands came in response to two racist Snapchat photos that were taken within 48 hours of each other. In one photo, three white students had locked a female black student out of a dorm room and took a photo with the caption “locked the black b—-h out.”The
The second photo was of four white women in black face with the caption “Black lives matter.” The Star Tribune, which reported on the photos, could not determine whether the four women were UND students.
UND President (and former Republican Congressman) Mark Kennedy condemned the photos in a message to students shortly after they were discovered.
“I am appalled that within 48 hours two photos with racially charged messages have been posted on social media and associated with the UND campus community,” Kennedy wrote. “It is abundantly clear that we have much work to do at the University of North Dakota in educating our students, and the entire university community on issues related to diversity, inclusion and respect for others.”
But Kennedy also ensured that investigations into the photos would follow due process, even though he acknowledged that many in the campus community wanted “a swift resolution.”
In the wake of the photos, students met with Kennedy to discuss a “zero tolerance” policy on offensive speech. In an email to students after the meetings, obtained by the popular North Dakota blog Say Anything, Kennedy rejected the proposal on First Amendment grounds.
“While I appreciate the desire for such a policy, it is unachievable under the First Amendment to the U.S. Constitution,” Kennedy wrote.
“The challenge we all face is to find the balance between wanting to eliminate expressions of racism and bigotry and supporting the free speech guaranteed by the First Amendment. If we value freedom of speech, we must acknowledge that some may find the expressions of others unwelcome, painful or even offensive.”
He added: “We can, however, speak out and condemn such expressions, and we can work to create a more welcoming and inclusive environment.”
UND investigated each photo, and found that they did not violate the “UND Code of Student Life,” but could not disclose the details of the investigation or its findings due to federal privacy law.
The UND Code does prohibit harassment, but even though the two photos were “objectively offensive,” they may not have been “sufficiently severe, persistent or pervasive so as to interfere with or limit the ability of an individual or group to participate in or benefit from university-sponsored programs or activities, including employment and academic pursuits.”
As to the first photo, we’ve all had terrible roommates (I’ve personally had several). Instead of expelling the students who locked their fellow student out, creating a dialogue seems like a much better response.
A change of dorms is fairly simple, and if the students who did the locking out were expelled, what would that teach them? It would likely ingrain biases into them that would be harmful to themselves and others going forward.
As to the four women in black face, it looks like they might have been using a specific kind of face mask (I honestly would have jumped to the racism conclusion if I hadn’t just seen a Facebook ad for this mask) and added an oh-so-unacceptable caption to the photo (if they were even the ones who had added the caption).
It’s happened before. There are also several instances of students using facial masks and adding racially charged captions similar to the one that occurred at UND.
Assuming each photo was exactly as racist as first thought, they still appear to be isolated incidents rather than pervasive harassment. The students who took and posted the photos should be condemned, as Kennedy said, but not removed from society. People can learn and grow, and we shouldn’t be casting people out for every egregious act.
“Zero tolerance” policies are especially harmful, as research has shown them to be ineffective at best, and dangerous at worst. In fact, zero tolerance discipline policies might even, on aggregate, harm and discriminate against minorities in particular.
Kennedy was correct to deny the students’ demands for such a policy. Who gets to decide what speech would be covered under zero tolerance and what kind of biases would be inherent? How broad would the policy be? One can imagine students getting disciplined for dumb mistakes or simply holding the “wrong” viewpoints (like conservative ideas) under such policies.
More schools need to understand and honor the First Amendment, as UND does, rather than turning their school administrators into thought police.
Ashe Schow is a commentary writer for the Washington Examiner.
