In a sharp rebuke to Florida International University, a federal judge has ruled that the school likely violated the First Amendment rights of students who staged a silent protest against the university’s voluntary collaboration with federal immigration authorities in March.
She ordered the school to immediately stop enforcing a policy against any "expressive activities" taking place, as well temporarily blocking any disciplinary actions against the students.
The case has been closely watched by free speech advocates who argued the university’s policy that bans so-called “expressive activities” indoors was being weaponized to punish students for their political views.
The basic facts of the case are undisputed: On March 13, a group of 20 or so students sat in the audience while FIU President Jeanette Nuñez held an on-campus chat with former Major League Baseball star Alex Rodriguez. About a half hour into the program, the students stood up and unveiled shirts that said “ICE OFF FIU,” and stood silently for a few minutes. They then left the event.
Three months later, the school took disciplinary action against seven of the participating students for violating a policy against “expressive activities” indoors. Students were found to be in violation of the policy and were ordered to record two-minute videos to reflect on the policy and their conduct.
Students were incensed, feeling that their free speech rights were being violated, and they decided to sue earlier this month.
On Sunday, three days after their first court hearing, U.S. Southern District of Florida Judge Jacqueline Becerra ruled in their favor.
"In short, when all is said and done, and for at least sixty years, the standard has been the same: student speech cannot be curtailed unless it materially disrupts the educational mission or involves substantial disorder or invasion of the rights of others," Judge Becerra wrote in a preliminary injunction, temporarily blocking the university from enforcing the policy. "Based on the evidence submitted to date, it does not appear that any Plaintiff, or anyone else wearing an 'ICE OFF FIU' T-shirt, spoke or did anything other than sit, stand, and walk."
In issuing the temporary block on enforcing the policy and against taking further disciplinary actions against the students, Judge Becerra said that the school was likely to lose in court if it took matters further.
The seven student plaintiffs in the case are part of an FIU group of students called ICEBreakers. The group formed last year, after FIU became the first university in the nation to establish an agreement with Immigration and Citizenship Enforcement (ICE). The agreement allows campus police officers to enforce immigration law on campus.
For months the students said they tried to have dialogue about the issue with FIU president Nuñez, but she would not meet with them. They were sharply critical of the policy, saying it makes immigrant students and others feel unsafe on campus.
Feeling they had no other way to convey their message, they opted to hold a silent protest in an auditorium while she was on stage. If she would not speak to them, at least she would see them, if only out of the corner of her eyes.
Free speech is not without limits. The test firmly established by the U.S. Supreme Court is that speech on a school campus cannot be regulated if it does not cause a disruption. The precedent comes from a landmark case called Tinker v Des Moines, in which students were punished for wearing black armbands to protest the Vietnam War. The opinion in that case famously ruled that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”
As FIU police investigated the silent protest to determine if it was disruptive, an internal email from an FIU staffer who organized the event with Nuñez told investigators that the silent protest “did not disrupt the event,” and that no one present lodged any complaints about the action.
Nonetheless the school pressed forward with disciplining the students.
The only evidence FIU presented to the federal court suggesting that the silent protest was disruptive came from a statement signed by FIU Police Department detective Francisco Gamundi. In a sworn statement written on Monday, Gamundi wrote that the silently standing students prevented “audience members in the rows behind the standing attendees from being able to see the stage.”
“From my perspective, as someone in the room, the standing attendees disrupted the event, both by obstructing other audience members’ view of the event and causing a distraction when they stood up together and left the auditorium all at the same time,” wrote Gamundi, who has been on the force for seven years.
Judge Becerra did not find his sworn testimony persuasive. Besides, she noted that the sworn testimony was submitted well after the fact, and "does not appear to have been part of the students’ disciplinary proceedings."
FIU cited two court cases in its own defense of banning "expressive activities" indoors. One was United States v. Nassif, a case relating to the insurrection on the U.S. Capitol building on January 6, 2021. The D.C. Circuit upheld a ban on "parad[ing], demonstrat[ing], or picket[ing] in any of the Capitol Buildings," and FIU pointed to the case as an example that speech in the indoors can be regulated differently.
Becerra noted that she is not bound by rulings that come out of the D.C. Circuit. Either way, she added, the D.C. Circuit found that the U.S. Capitol is a "nonpublic forum" unlike a university, and that "because the case dealt with speech outside of a school setting, the Court finds it entirely unpersuasive"
FIU's attempt to justify punishing students for standing up with t-shirts in a university building takes the fundamental First Amendment issue "down a road not taken in any school speech case either by the Supreme Court or the Eleventh Circuit [Court of Appeals]," wrote Becerra.
She ruled that the school can not continue to enforce its ban on “expressive activity” indoors, at least temporarily.
It is unclear if FIU plans to pursue the legal case further after the preliminary injunction, or if it will simply stop enforcing the policy that bans “expressive activities” indoors.
“ We still are planning on holding events, making our voices heard on campus,” Max Fodren “ Just because we're being punished for something that's unconstitutional does not mean that we're gonna not do what we did last time… this semester it's gonna look a lot like the same as last semester.”
Fondren said she just attended an event in Denver, and was surprised to learn that fellow attendees from California and Canada were familiar with ICEBreakers and the group’s free speech fight against FIU. She said the attention to the group’s cause of getting immigration enforcement officers off of campus has only increased since the school chose to discipline the seven ICEBreaker members. Support has also grown on campus amid the fight, she said.
“ I feel like our momentum is really building,” she said.
At attorney for the seven students told WLRN on Sunday evening that the students plan to wear their "ICE OFF FIU" shirts to campus on Monday, the first day of fall semester.
