Groups are concerned the restrictions could stifle student activism.
RICHMOND – Following the deadly white supremacist attack in Charlottesville on August 11 and 12 in 2017, the University of Virginia (UVA) made some hard but understandable decisions.
The white nationalist demonstrations on August 11 began at the University of Virginia. The event had a permit to gather from the school. Jason Kessler, a known white supremacist, neo-Nazi, anti-Semitic conspiracy theorist, is the permit’s applicant. The university originally revokes the permit but following a court battle where the ACLU represents Kessler in court, it eventually restores it to him.
In the aftermath of the violence that night, UVA chose to restrict how organizations not affiliated with the university can protest on campus.
These restrictions, which UVA updated in 2018, require outside groups that want to engage in public speaking or distribute literature to make reservations with the school. To do that they must register at least seven days in advance. These reservations last for a maximum of two hours between 9 a.m. and 6 p.m., Monday through Friday. Once a group or individual has made a reservation on campus, they can not make another one for another seven days. Additionally, these reservations only apply to certain limited, designated areas. The number of people the school allows at each of these areas is at most 50, and in many cases, only 25.
Despite their good intentions, according to some students these restrictions could stifle student activism.
“You’re at risk of expulsion or suspension,” said Donavon Lea, chairman of the Political Action Committee for the Black Student Alliance at UVA. “It really restricts, when something happens and we want to get together.”
UVA Restrictions ‘Overly Broad’
The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
According to Alan Graf, constitutional lawyer and president of the Southwest Virginia chapter of the National Lawyers Guild, each of these restrictions might not be a problem. But combined, they could present a constitutional challenge.
“It sounds to me like the totality of all their restrictions they’re going to run into some problems if challenged in court,” said Graf. “In my legal opinion, the totality of all them together may be too restrictive and contrary to the First Amendment.”
Graf says the school needs to show a compelling reason for having each of these restrictions. One or two might be acceptable, but all together he says the restrictions could be unconstitutionally broad.
“When they’re restricting speech in a public forum they have to have it narrowly tailored,” Graf said. “Every time they restrict free speech they’re going to have to come up with reasons that are convincing.”
Discouraging Cultural and Political Action
Graf says that’s because, among other reasons, limitations on the location of protests negatively impact their effectiveness. That, he says, is unconstitutional.
“They have to stay in one place. Well, see the problem with that is that, let’s say there’s a professor or somebody you want to get their attention and you’re only allowed to stay in one place and that person will never see you. Well, then the restriction is too broad. It probably wouldn’t be allowed.”
By limiting the number of people who can participate in events that outside organizations are a part of, students say some of their time-honored traditions could be threatened.
Every year, the Native American Student Union at UVA hosts a Pow Wow on university grounds. The union partners with neighboring tribes to hold this community event. According to their president, if the university starts enforcing them, these restrictions would make holding another Pow Wow impossible. For one thing, they usually involve about four hundred participants.
“Pow Wows have dancers and they have drummers. And just the amount of people that’s needed to undertake a Pow Wow, would not be, you can’t just have 25 people,” said Native American Student Union President Fernanda Yepez-Lopez. “It matters, being there together, in the present. It’s a very big component.”
Required Permits ‘Frowned Upon’
The process outside groups go through to gain approval for holding a protest at UVA also present a constitutional question. People and organizations who want to hold events or protests on campus must register in advance with the Office of the President. They must register at least seven days in advance, but no more than 4 weeks before the event. According to Graf, restrictions like these make constitutionally-protected spontaneous speech impossible.
“If you’re requiring permits two, three weeks in advance, that usually is frowned upon because it squelches spontaneity. And spontaneity in speech is a really important element in free speech,” Graf said. “Particularly in a traditional public forum, there’s a certain beauty to spontaneity in speech.”
Individuals in the US have the right to ‘stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause’. That’s according to the U.S. Supreme Court in its ruling on the case of NAACP v. Claiborne Hardware Co.
A Chilling Effect on Students Motivation to Protest
Nothing in the university’s policies regarding limitations on protests restricts the content of those events. However, they do say that events which people or groups not part of the university hold must be “consistent with university policies.’
The fact that the permitting process to approve protests involving outside organizations is internal discourages some students from protesting the university itself.
“It definitely does raise some concerns and some anxieties. Because clearly the reason that people would protest is because we disagree with the actions, and sometimes the morals, of the university. So if what we’re doing is physically representing that we have a different ethical and moral principle than the university, then they could easily just use that as a way to punish us,” said Lea.
Unequal Enforcement of Protest Restrictions
With all new restrictions comes the risk of unequal enforcement, and some students say they have reason to believe that would happen at UVA. That’s because enforcement of other rules are already being inequitably applied.
According to Lea, students holding a teach-in on the racist legacy of Thomas Jefferson, UVA’s founder, recently experienced harassment from the UVA campus police, called ambassadors. These ambassadors do not carry weapons, but serve as official representatives of the university by enforcing its safety regulations. However, students describe their presence as intimidating.
“We were getting a lot of pushback, intimidation, by these ambassadors when we were trying to have our demonstration,” said Lea.
Lea says ambassadors were asking where they got permission for their protest from, even though student-led demonstrations don’t require permits. Ambassadors tell them to disperse, because they said students are violating COVID restrictions limiting social gatherings. But Lea says students didn’t back down, insisting it’s their First Amendment right to protest. They were able to finish their event on that occasion. But Lea says it’s actions like these by university officials which discourages students from exercising their rights.
“When things are happening within the university that people would like to protest on, there’s a lot of hesitancy to do so. Because that is where they can definitely get us in trouble as far as covid restrictions and things like that,” Lea said.
Rush Week Indicates Unequitable Enforcement
Months after Black liberation protesters experience harassment from the campus ambassadors, the university holds rush week. Rush week is a period of time when sororities and fraternities recruit fellow students to Greek life. The 2021 Pow Wow had to be canceled due to the COVID-19 pandemic. But parts of rush week went forward without interruption.
According to the Charlottesville Tomorrow, cases of COVID-19 on-campus spike following a week and a half of rush activities. And despite taking some aspects of these ceremonies online, sororities and fraternities hosted in-person events on February 14. University restrictions at the time prohibited more than six people from gathering in one area. Ambassadors did not enforce them on this occasion. In fact, the ambassadors took photos with crowds of students at rush week events.
“There are pictures and videos of the ambassadors taking these groups’ pictures. And they are much larger numbers, there has to be hundreds of students,” Lea said.
Videos of the event on Twitter confirm that ambassadors were socializing with students instead of enforcing social distancing rules.
Protest Restrictions Not Enforced For Now
Despite the university’s restrictions on gathering organized by people not affiliated with UVA, students say they’re not enforced.
“I’ve never heard of an organization having anything canceled or anything shut down. Because our administration really does care about its students. And they want everyone’s opinions to be heard,” said Elliana McGovern, president of Planned Parenthood Generation Action at UVA.
Issues with how strict these rules are, students say, will only come up if the university starts enforcing them.
“I could see why it potentially could be an issue. But I don’t see the administration enforcing these things anytime soon,” McGovern said.