On March 13, during a talk with Florida International University President Jeanette Nuñez and former baseball star Alex Rodriguez, a group of students stood up, unveiled shirts that said “ICE OFF FIU” and then walked out of the room a few minutes later.
Seven of those students — silently protesting the school’s voluntary collaboration with immigration enforcement — 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 WLRN 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.
“ It 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,” 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 regulation on expressive activities on campus, particularly a section that says “expressive activities are prohibited inside University buildings.” The stated reason for the regulation is to “prevent disruption” on campus.
In an email included as part of the evidence in the case, Jehnny Rivera, FIU’s executive director of the Office of University Protocol, Ceremonies, and Events estimated the students stood for “approximately 3-5 minutes.” Writing to an investigating officer, Rivera added that the short protest “did 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.”
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.
“ I just feel really disappointed and as if my own free speech is being restricted because of my opinions on what FIU has been doing,” Tripathi said. “I’m really disappointed in FIU right now.”
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WLRN asked FIU why those who applauded for Nuñez and Rodriguez at the event were not similarly disciplined; a round of applause is expressive activity, but unlike a silent protest, applause creates noise.
The request for comment from FIU for this story was not returned.
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 WLRN 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.
“ I turn to the lawyer, the office general counsel guy who's there, and I go, ‘Hey, man. Like, day one, class one, law school — you remember the black armbands case? You're a public school. You can't discipline a student for non-disruptive activity,’" 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 “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”
Simply wearing an armband did not cause any disruption of the school, the court ruled — it was an issue of “pure speech.”
Saper said there are “almost identical” parallels between the two cases, and that in both cases students only wanted to “speak out against the establishment of their parents, of the school, of the administration, of those in power.”
Students of the “ICEbreakers” group on campus had previously pushed to meet President Nuñez 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’s own definition of “expressive” activities specifies that those activities are “protected under the First Amendment.”
“They're saying you are not allowed to exercise your First Amendment. You're not allowed to express yourself inside a university building,” said Saper. “This is the reading that they are using to prosecute these kids.”
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 held 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 ruled that the De Soto County school district violated a lesbian student’s 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’s right to free speech was “clearly established at the time of the violation” that district officials could not benefit from “qualified immunity,” meaning that they could be personally held liable for damages.
“ I don't know if FIU's Office of General Counsel has communicated that to the individuals who are conducting this disciplinary process,” said Saper. “Which is the irony of this whole thing — 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.”
If sustained, students could face everything from a written reprimand to expulsion from the university, said Saper: “ There'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” and that the university changes its policies.
“I 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,” she said.
