In a move that students and their attorney allege is a gross violation of the First Amendment, Florida International University is moving forward with disciplinary actions against seven students who participated in a silent protest at a campus event in March.
The students this week were given a written reprimand, and are being ordered to record videos about FIU policies they allegedly violated.
They told WLRN they worry the videos could force them to express opinions they do not agree with.
The basic facts of the case are undisputed: A group of students sat in the audience while FIU President Jeanette Nuñez held an on-campus event March 13 with former Major League Baseball star Alex Rodriguez. About a half hour into the program, students stood up and unveiled shirts that said “ICE OFF FIU,” and stood silently for a few minutes. They then left the event.
FIU maintains that the silent protest violated a campus policy against “expressive activities” taking place indoors.
The school’s own policies specify that “expressive activities” include “protests, parades, marches,” as well as the broad, catch-all phrase "exercises in free speech.” University policies further underscore that all those activities are “protected under the First Amendment to the United States Constitution.”
In addition to a written reprimand for the protest, students are being told they need to each record a two-minute video explaining “what is expected … related to indoor and outdoor areas, and how you will apply what you have learned moving forward,” according to a copy of the disciplinary letters seen by WLRN. The videos must be “original,” and “thoughtful and substantive in response to the prompt.”
If FIU Office of Student Conduct and Academic Integrity is not satisfied with the video, the office can ask students to re-record the video, the letter specifies.
“ I personally was a little bit shocked at the outcome,” Allyson Basden, a third-year political science major and among the seven students reprimanded, told WLRN. “ We're having a moment of realization that the school isn't necessarily on our side as students as much as we would like to think.”
The group intended to protest FIU’s voluntary collaboration with immigration enforcement on campus. After months of trying to meet with Nuñez to voice concerns with the policy, students said they felt they had no other outlet through which they could voice their concerns to her.
FIU defends punishment
FIU spokesperson Madeline Baró told WLRN that its policies are in accordance with the First Amendment along with Florida law.
"FIU applies its rules prohibiting protests and demonstrations in university buildings consistently, regardless of viewpoint. This ensures that classes, research, and academic spaces can function without interference or disruption," Baró wrote in an email to WLRN. "The University allows protests and demonstrations in outdoor areas, giving people a meaningful way to share their views, just not inside university lecture halls, labs, offices, or residence halls."
The case has striking resemblance to the landmark U.S. Supreme Court case called Tinker v. Des Moines. Back in 1965, high school students in Iowa wore black armbands to protest the Vietnam War after the school threatened to suspend any students who did so. Five students who wore the armbands were suspended.
The resulting U.S. Supreme Court case found that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” So long as students expressing themselves did not disrupt school functions, schools could not ban that expression. The Supreme Court called it an issue of “pure speech.”
An internal email from an FIU staffer — included in evidence presented in the case — told investigators that the silent protest “did not disrupt the event,” and that no one present lodged any complaints about the action.
Free speech precedent
Federal courts have upheld that case in Florida twice — once in 2008 and again in 2013. Both cases had to do with schools trying to suppress pro-LGBTQ speech.
Basden said her parents, from the Bahamas and Nicaragua, are both alumni of FIU and have expressed their own shock at how much things have changed on campus. Both were present at the disciplinary hearing, which took place on Juneteenth.
Basden’s father was in FIU’s Black Student Union and regularly protested on campus, but he never received any disciplinary actions for expressing himself, Allyson Basden said.
“ We are adults. Everybody is an adult. So this hindrance on freedom of speech is crazy, but I do feel like it kind of definitely shows where we are right now, where freedom of speech is being hindered,” she said.
The mandate that students create a two-minute video in which they reflect on campus policies is particularly ripe for abuse, said Basden. If she gives a true reflection of her thoughts on the subject — that the campus policy violates her freedom of expression — the school could demand that she re-record the video over and over again until FIU officials are satisfied.
“If we do that video, we would basically have to kind of be abiding by what they would want us to say and how they would want us to sound and say it,” she said. “There's really no room here for personal opinion. It doesn't have a script, but it would make us kind of feel that we have to sound scripted, if that makes sense.”
Beyond recording the video, Basden wonders what the school would actually do with the videos. “ Are they gonna play it like somewhere?” she asked. “That would be embarrassing.”
The Community Justice Project, a local non-profit, is representing Basden and the six other students pro-bono.
Staff attorney Adam Saper told WLRN that, depending on how the university were to respond to any video submitted, that the video portion of the disciplinary action potentially opens up another freedom of expression issue, on top of issues raised by the case itself: a concept called “compelled speech.”
“ As a public institution, you can't compel a student to say what you want,” said Saper.
Saper said the case brought against the students is a straightforward issue of free speech, but that before the June 19 hearing, acting FIU general counsel Ryan Kelley told Saper not to bring up constitutional issues. If he brought up the landmark Iowa case, he would be cut off, Saper recalled.
“ That was shocking. In more than a dozen years of legal practice, I've never had somebody tell me that I can't make a legal argument, especially when it's so patently obvious that the law and Constitution are at play in this issue,” said Saper.
FIU's Baró disputed Saper's recollection that he was told not to make constitutional arguments at the hearing: "That assertion is plain wrong."
Disciplined students likely to appeal
Kaitlyn Daley, a third-year psychology and art student, said that she and the other disciplined students are likely going to appeal the charges internally, a right the disciplinary letter says that they have. But she is skeptical that the outcome will change.
“ We've seen how the school works, and we've seen how hard they try to defend themselves,” said Daley. “So even though we're all gonna put in an appeal, we don't have high hopes for it.”
After an appeal, she said, the students are “trying to decide what the next step is,” whatever it might be. Daley, a Cuban-American, said she has the support of her parents to defend her freedom of speech, although the whole thing makes them nervous.
The mandate that she record a video is a “slap in the face,” she said. She added that the fact that they can make her re-record it until the school is satisfied tells her that in reality the school wants an “apology video.”
“ It feels like they're continuing to try to silence us by making this video, and I don't wanna do that. I don't wanna give them the power. I don't wanna make them feel like they're right. I don't wanna give them the last say,” said Daley.
The biggest issue for Daley is how far the university will push its policy that “expressive activities” can be banned indoors. Campus political groups regularly set up tables inside FIU's Graham Center. She walks around all the time with a pin on her backpack and stickers on her laptop that carry political symbols and slogans. The uncertainty could crush free speech rights on campus, she warned.
The ambiguity underscores her belief that the silent protest was met with disciplinary action because she was protesting immigration policies that have been a hallmark of the State of Florida under Gov. Ron DeSantis, and of FIU under President Nuñez, DeSantis’ former lieutenant governor.
“I don't feel like I go into school and I lose my constitutional rights,” said Daley. “ At the end of the day, all we did was stand up with shirts.”
