Selective outrage over discrimination

Robert Steinbuch

You might recall the details of how Ashlyn Hoggard had her First Amendment rights violated by Arkansas State University when she studied there. Because I've told you that I intend to continue to seek justice for Ashlyn, here's a primer from the U.S. Court of Appeals opinion on what occurred:

"Just outside the Student Union, Arkansas State University student Ashlyn Hoggard set up a small table. She was accompanied by Emily Parry, a non-student representative for Turning Point USA ..., an organization focused on promoting free markets, limited government, and individual liberty.

"Hoggard and Parry aimed to recruit students for a local Turning Point chapter, which they hoped could become a registered student organization at Arkansas State. But in short order, two University administrators ... approached the table to investigate."

One administrator "told Hoggard and Parry they could not 'table' at ... the 'Union Patio.' If Hoggard and Parry wanted to set up a table and display their signage ('Free Market, Free People,' 'Big Government Sucks'), [the administrator] explained, they could do so elsewhere--specifically, in a campus 'Free Expression Area,' one of which was less than 100 yards away.

"In response, Parry expressed her views about the constitutionality of Free Expression Areas and other campus-speech restrictions. A university police officer quickly arrived at the scene and ordered Parry to leave campus. Hoggard was told to take down her table. Her recruiting efforts--at least at her Union Patio informational table--were done for the day."

The school's rationalization: "Hoggard was instructed to take down her table because the Union Patio was reserved for registered student organizations and University departments ... The application form for registering a student organization requires five members, a constitution, and an adviser ..."

According to ASU, you can have free speech only if you:

Register with the authorities,

Get five people to join your club before you, uh, try to get people to join your club (unpack that 12 Monkeys paradox),

Write a constitution (is that all?), and

Get that "trusted" government adviser (or is it "minder"?).

Sadly, nobody in ASU's echo chamber of leftist administrators and attorneys thought this absurd. The court, however, did: "[W]e find that the Tabling Policy, as applied to Hoggard, is unconstitutional. ... [The] legitimate university interest bears no rational relationship to the distinction between registered student organizations and individual students when it comes to using the Union Patio ..."

Indeed, the court made lunch meat of ASU's bureaucratic imprimatur-contingent safe-space excuse: "[W]e cannot find the distinction between registered student organizations and individual students reasonable ... [T]he (limited) availability of alternative forums and the defendants' educational expertise cannot compensate for the weak justification (i.e., creating a comfortable living-room atmosphere) the defendants offer for their status-based discrimination."

ASU never apologized for its status-based discrimination against Ashlyn. Indeed, higher education's selective outrage regarding discrimination in general is remarkable--particularly given the bloom of diversity, equity, and inclusion administrators. Recall that after my colleague Josh Silverstein objected to adding a civility standard--which he aptly described as often used as "pretext for discrimination, to suppress dissent, and to exclude minorities and outsiders"--for key faculty honorifics at the Bowen Law School, the faculty rejected his hypocrisy-revealing proposal to also consider "whether the candidate has discriminated against another employee of Bowen on the basis of a status protected by law or has supported such discrimination." (Civility: critically important. Discrimination: meh.)

Given ASU's still yet-to-be-apologized-for status-based discrimination, I wrote the university president, Charles Welch: "As you may know, I'm a columnist for the Democrat-Gazette. I've been covering the failure of AState to apologize publicly to Ashlyn Hoggard after the school illegally prevented her from handing out conservative literature. ... Would you like to have an interview about these events or otherwise provide a statement regarding AState's actions and subsequent silence towards Ashlyn?"

It seemed an opportunity for Welch--who earns $409,000/year (plus housing)--to do right. He could have said: "Thank you for your kind offer. AState acted terribly towards Ashlyn in violating her constitutional rights. We should have done better towards a student who we're entrusted to protect and educate. On behalf of the entire AState family, I offer our apologies."

My optimism proved misplaced.

Crickets from Welch. But three hours after contacting him, I received an email from ASU's vice president for strategic communications and economic development, stating "[i]t's not our policy to offer comment on these kinds of matters."

He continued that this was particularly so since I'm a columnist (explicitly why I asked) and I represent a concealed-carry licensee litigating the right to be armed in ASU's arenas (obviously unrelated to Ashlyn's lawsuit).

So, I asked: "Is there such a policy? If so, could you please send it to me?"

ASU communications VP's full response: No.

I don't understand why ASU refuses to apologize to Ashlyn for its status-based discrimination. Rest assured, I'll keep asking until Ashlyn and the people of Arkansas get the apology Ashlyn's owed. It's the least ASU can do--literally.

This is your right to know.

Robert Steinbuch, professor of law at the Bowen Law School, is a Fulbright Scholar and author of the treatise "The Arkansas Freedom of Information Act." His views do not necessarily reflect those of his employer.