November 13 2019
Dear Editor,
I draw the attention of your readers to the matter involving the UG student recently accused of making “nasty” racist remarks against Afro-Guyanese on Facebook. Several, including the President of the University of Guyana Student Society and the university administration, have expressed their views on the appropriate way to sanction the student. I have not seen the student’s actual comments. Nor have I seen his reported apology. But even with that handicap, I wish to venture into the legal minefield to discuss the extent that such “racist rants” are protected by our constitutional right to freedom of speech and, therefore, the extent that the student is outside the penalizing reach of the university administration and the state.
I rely heavily here on the verdict of a US circuit court, issued just last week, which conveniently summarizes the state of the law in the US regarding the limits to on-campus and off-campus speech by students (https://www.courtlistener.com/...-indep-con-sch-dist/).
US jurisprudence on the issue starts by recognizing that, as citizens, access of students to all constitutional rights (including freedom of speech) does not diminish when they pass through the campus gates or sit in the classrooms. Secondly, it recognizes that, apart from the general restrictions placed on such rights for all citizens, a student’s freedom of speech and other rights must be further tempered due to the fact that schools and campuses have a teaching and learning mission, which requires a special environment devoid of disruption and disorder. Taken together, these two considerations serve to outlaw certain activities and behaviours of students on US campuses, such as noisy protest marches. Not that that has stopped such demonstrations.
The on-campus legal situation is clear. The same thinking extends to school-sponsored activities off-site. The education mission of the school continues to limit the rights of students.
The more difficult question is the rights of students when they are off-campus engaged in their own activities on their own time. This is the case here with the UG student who was spouting racist remarks during his own free time on social media. Can the university penalize him? Alas, the US Supreme Court is yet to rule on this, with such cases left to the individual judgments of US circuit courts. A consensus, however, seems to have emerged in the US that should a student (off-campus and on his or her private time) say or do something, the impact of which disrupts or could reasonably be projected to disrupt the teaching environment in his/her school, that student could face punishment by the school. The fact that social media allows hate and other deplorable speech to be widely circulated, such a law or university rule, if implemented, puts a tight noose around what students could safely post online.
Of course, Guyana has the Racial Hostility Act “for preventing conduct tending to excite hostility or ill-will against persons by reason of their race.” But given what I am told about the level of racial nastiness on Facebook (as a non-user myself), our authorities apparently think it best to turn a blind eye. As for the university, it should first publish a clear policy for on-campus and off-campus student behaviour that respects the rights of students and its need to fulfill its own educational mission.
Yours faithfully,
Sherwood Lowe
