UNC 'Intimidation' Charge Against Student Alleging Sexual Assault Raises Free Speech Concerns

06/13/2013 01:33 pm ET | Updated Jun 14, 2013
AP

The University of North Carolina-Chapel Hill has dropped its case against Landen Gambill, a sophomore student UNC accused of creating an intimidating environment for a fellow student, whom she accused of sexual assault. But in dropping its charge last Thursday, the university also acknowledged that bringing the intimidation case before UNC's "honor court" may have violated Gambill's rights to free speech.

Gambill, in turn, alleged that the university's charges against her had been leveled in retaliation for her part in a federal complaint against UNC over how they handle sexual assaults.

But much of the controversy likely could have been avoided had the school responded to concerns expressed by experts in previous years that UNC's honor code may violate constitutional protections of free speech.

Though she never named him publicly, Gambill's ex-boyfriend brought the intimidation charges after she began speaking out about how UNC handled her allegations that he sexually abused her. The charges accused Gambill of violating a provision of the school's honor code that prohibited "disruptive or intimidating behavior." Gambill potentially faced expulsion if found guilty by the honor court, the UNC student body that considers cases of violation of the honor code.

Ultimate authority on the court's decisions lies with the university chancellor, but the student members decide whether to bring a charge, and what the punishment will be. Faculty also provide guidance to court members, and decisions can be appealed to UNC administrators. In May 2012, the honor court found Gambill's ex-boyfriend not guilty of assault, but guilty of harassment.

Back in 2010, the Foundation for Individual Rights in Education (FIRE), a free speech watchdog group, labeled the intimidation provision of UNC's honor code with a "yellow light," meaning the policy could be used to ban or excessively regulate speech protected by the First Amendment.

"Despite having the chance to revise this unconstitutional policy years ago, at the prompting of FIRE and its own students, UNC refused to do so," FIRE senior vice president Robert Shibley said in a statement Friday.

In responding to FIRE's criticism in January 2012, UNC vice chancellor Winston Crisp said he was comfortable with the university's policy, but understood it "could be applied loosely and be problematic."

FIRE has not been alone in raising concerns about the provision.

Richard E. Myers II, a UNC law professor, told The Huffington Post Wednesday that he recommended the university at least review the provision back in November 2011, when was a new member of the Committee on Student Conduct. The CSC, which oversees the honor code, again discussed changing the provision in late 2012, Myers said, but held off since there wasn't a consensus. Once Myers became chair of the CSC in early 2013, as the case against Gambill unfolded, he said he went directly to Crisp to express concern over the provision's constitutionality.

Multiple faculty members also expressed concerns that the provision in question had "potential for chilling or punishing free speech," according to a review by Barbara Lee, a Rutgers University professor who teaches higher education law. It wasn't until Lee's report was delivered in late May 2013 that the UNC administration decided to suspend the honor code provision.

The provision has been suspended indefinitely pending an evaluation to ensure it does not violate student free speech rights, according to a campus-wide message sent last week by outgoing UNC chancellor Holden Thorp.

UNC spokeswoman Susan Hudson told HuffPost Thursday that it was only after sexual assaults and harassment were removed from the honor code in August 2012 that this section "gave rise to concerns about free speech issues." Hudson noted a task force led by Faculty Chair Jan Boxill is examining ways to reform or improve the honor system.

But Henry Clay Turner, Gambill's attorney, said Monday that for the university to "act as if the conversation just now occurred by chance is crazy, everybody knew it was unconstitutional months ago."

Melinda Manning, a former assistant dean of students at UNC-Chapel Hill, told HuffPost Tuesday that "I think we as an institution had so much pride in our honor system, we felt like our system was so good it didn't need to change."

Manning resigned from her post in December 2012 just before she joined Gambill and three others in filing the complaint against UNC for how they handle sexual assaults. She said the university had "failed" the students running the honor court.

"There was some sloppiness and inconsistency, specifically in the training," Manning said. "Students weren't necessarily getting the same amount of training or the same degree of training from year to year."

Hudson disagreed, describing the honor court training as "extensive" and said it "covers a broad range of material."

"That said, we continue to examine the increasingly complex issues involved in student discipline and will continue to update and expand our training accordingly," Hudson said.

Lee's review -- which was not made public but was obtained by HuffPost -- found the student attorney general (SAG) handling the case against Gambill did not have the proper training in how to decide whether to bring a charge, and had to rely on advice from other students, not experts. The SAG told Lee she sought guidance from faculty and administrators, but was turned away, redirected or given incomplete advice.

Lee wrote that she found multiple problems in the honor court system, one that was tasked with enforcing a possibly unconstitutional speech code and that up until last year adjudicated sexual assaults.

"I do believe that the Honor Court system is flawed because of the University's lack of accountability for a student-dominated process," Lee wrote. "This particular incident -- the Honor Court charge and the ensuing allegations of 'revictimizing' an alleged sexual assault victim -- has exposed the problems inherent in a student-led system in which administrators and faculty have very little control."

Given these problems, some people are asking why UNC's student-run honor court is making such critical judgement calls without proper training or guidance.

Adam Goldstein, an attorney at the Student Press Law Center, believes honor courts should be limited to handling academic dishonesty and cheating.

"For any other claim, honor courts make no sense," Goldstein said. "They duplicate protections that exist in other systems, and then hold up their lack of due process, investigation and procedure as an asset by claiming that their speed justifies their method. But they don't have training for most of these subject areas, either.

"I can give you brain surgery tomorrow if I don't waste time on tests to find out what's wrong with you, but even if you think that's a good trade-off, shouldn't it trouble you that I don't know how to do brain surgery?" Goldstein said.

Turner said the lack of training is part of a larger problem: These issues were not taken seriously by administrators.

"UNC did not take responsibility for the safety of its students and its own compliance with federal law," Turner said.

Manning had similar criticism, noting UNC's repeated defense that they could not control the honor system because it was student-run.

"The university is trying to throw the students under the bus," Manning said. "There's really no other way to put it."

Also on HuffPost:

12 Worst Schools For Free Speech In 2012

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