Free speech group criticizes school, administration responds

Many students cheered the college administration’s decision to impose sanctions on Phi Psi after a photo of the fraternity’s bid invitations, which was set on a background of images of naked and near-naked women, surfaced on campus. The Foundation for Individual Rights in Education (FIRE), a national non-profit that advocates for free speech and other individual rights on college campuses, was less enthusiastic.

On October 8, the organization sent the college a lengthy letter accusing the school of violating Phi Psi’s right to free speech, right to freedom of conscience and right to due process in punishing the fraternity for its fliers. The school, according to FIRE, acted improperly by punishing Phi Psi without charging the group with any violation of school policy.

“FIRE asks that Swarthmore College rescind the sanctions imposed upon Phi Psi,” FIRE wrote. “We request a reply by October 23, 2013.”

On October 21, they received one. In a letter to the organization, Chopp said that the school would not reverse its decision, which mandated that Phi Psi attend an educational training session and suspended pledging and social activity until the fraternity had undergone the training and developed new recruitment and social hosting.

Chopp further argued that the administration’s actions should not be interpreted as punishment. Thus, the school did not need to formally charge Phi Psi of breaching any policy.

“The College did not discipline Phi Psi for their distribution of the publication in question, nor did it charge them with violating any of Swarthmore’s policies,” wrote Chopp. “Rather, in the context of what many of our community members viewed as an example of the fraternity’s lack of understanding about how such images may be perceived by the community — and women in particular — the college believed it appropriate that the fraternity learn more about the college’s policies and procedures concerning sexual harassment and sexual violence.”

Samantha Harris, FIRE’s director of speech code research and the author of the organization’s letter to Swarthmore, was dissatisfied with Chopp’s response.

“It really didn’t address the issues that we raised. She says that the college did not discipline Phi Psi or charge them with violating any of Swarthmore’s policies,” Harris said in an interview with The Phoenix. “It didn’t charge them with violating any of Swarthmore’s policies but according to Swarthmore’s own policy guidelines, educational sanctions are a form of sanctions.”

Danielle Charette ’15, a member of the Swarthmore Independent, a conservative and libertarian campus magazine and blog that informed FIRE about the school’s decision to reprimand Phi Psi, was also unconvinced.

“She confirms FIRE’s accusations that Phi Psi has broken no policy but must be educated about college policies anyway,” Charette said. “She argues that Phi Psi failed to consider how others would interpret the flyers. Suddenly, speech on campus is subject to others’ subjective interpretation, which sets a dangerous precedent.”

Administrators insist that this is not a disciplinary action.

“We’re not seeing this as punishment,” said Lili Rodriguez, the dean of diversity, inclusivity, and community development, who oversees Greek life.

Dean of Students Liz Braun agreed with Chopp that the school’s response was meant to be educational in nature.

“The educational process is about the students’ total experience here on campus. It’s not just in the classroom,” she said. “I see what’s happening here as an extension of that.”

In the Judicial Policies and Procedures chapter of the student handbook, the school has a “disciplinary sanctions” section. “Educational requirements” are included in that section.

But Rodriguez said that what Phi Psi is undergoing is better thought of in the same way that the school would approach a conflict between two roommates who have a heated discussion in which one student made a stereotypical comment about a marginalized group. Rodriguez said the school would call those students in and “ask them to meet with a mediator so that they continue to live together peacefully.”

“Would that be considered a punishment?” she said.

But Preston Cooper ’15, who also writes for the Swarthmore Independent, argued that what the administration did goes beyond the educational approach administrators profess to be following, citing the school’s decision to suspend the organization’s ability to recruit or host events as evidence.

“If the administration came forward with something like, ‘Okay Phi Psi, we want you to attend some sensitivity training,’ then I think that would be okay,” Cooper said. “But the severity of the sanctions taken against them really necessitates the administration pointing to a concrete breach in policy.”

In her response letter, Chopp tied the decision to suspend recruitment activity and event hosting to “multiple concerns,” though she declined to delve into specific details.

Rodriguez, who in her letter to Phi Psi outlined the reasons the organization would face these suspensions, briefly mentioned that the fraternity “has not not abided by party registration policies, dismissing Party Associates (PAs) before parties have ended this year and treating PAs in an unprofessional manner.”

The end of the suspension is tied to the completion of the educational training session and proposal of a community event “that displays a genuine appreciation of what you have learned.”

FIRE asserts that the educational component goes beyond just learning, claiming that by asking Phi Psi to show a “genuine appreciation” for the campus’ viewpoint, the school “crosses the boundary from education into unconscionably arrogant, invasive and immoral thought reform.”

Rodriguez disagreed, saying that the school is not mandating fraternity members to think in any particular way. “We’re saying take a moment to reflect on this and see where you come out,” she said. “Where they come out of that is based on their own lives and thoughts and ideologies and values and all the things that individuals put into their education.”

She said that this process of reflection has been going on since the school became aware of the bids. Contrary to the claims of some, Rodriguez says that Phi Psi members did meet with her and Mike Elias, the student activities coordinator and Greek life liaison, and were given a chance to explain themselves before the letter was sent.

Zach Schaffer ’14, president of Phi Psi, told The Phoenix he would provide comment, but did not.

In their letter, FIRE accused the school of taking action against Phi Psi because they found the flier to be in “poor taste.” But some students say the bids are more than just raunchy or in “poor taste.”

“I would definitely qualify them under sexual harassment. It’s sexually explicit material that objectifies women,” said Yana List ’14, who felt the school was justified in taking action. “Your free speech ends where it impedes someone else’s life.”

List is not the only student who feels that what Phi Psi did goes beyond what should be protected.

“There’s a line between free speech and harassment,” said Allison Hrabar ’16. “When there’s something clearly demeaning to women coming from a house that has raped people and beat up people for being queer, it stops being speech and starts being harassment.”

According to a 2010 Dear Colleague Letter by the Department of Education’s Office for Civil Rights (OCR), harassment “creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.”

It does not, however, “have to include intent to harm, be directed at a specific target, or involve repeated incidents.”

In the student handbook, Swarthmore defines harassment as “unwelcome conduct” based on any legally protected status. “Harassment,” it says, “can occur in any form and can be directed at individuals or groups.”

Not everyone agrees that the fliers meet these standards.

“People have tried to argue that it was an example of harassment, but that doesn’t doesn’t hold up against what the Supreme Court says or even what Swarthmore’s handbook says,” said Charette. “I think it’s telling that the administration didn’t label the fliers as harassment. Instead, they attempted to placate the controversy by forcing Phi Psi into re-education workshops and hoping no one would notice that the College was denying Phi Psi members due process.”

Harris agreed. “Harassment has to be severe, pervasive, and objectively offensive. One flier distributed to fraternity members on campus is never going to meet those thresholds.”

As List pointed out, however, private institutions can go beyond the First Amendment in deciding what is or is not permissible. “Within a private organization, the norms can be different and the rules can be stricter,” she said.

Given the context of the circumstances surrounding the bids, List argues that the administration’s actions were acceptable.

“Some cultures are just bad and their accusation that this is impeding their free speech completely ignores the larger issue of rape culture and rape in the frats,” she said. “[FIRE is] focusing on the free speech issue when the larger issue is violence.”

Cooper disagreed that the administration should limit the First Amendment. “You could argue that yes, it made people uncomfortable. But there’s a lot of things on campus that make us uncomfortable,” he said. “It really shouldn’t be up to Swarthmore administration to say which kinds of discomfort are or are not okay, unless something is directed at a particular individual or group of individuals or is threatening in some way.”

And even so, Cooper said, the school needed to be clear about what was punishable and what was not.

“The administration never defined what parts of the handbook were broken,” Cooper said. “How are people supposed to follow the rules if they don’t know what the rules are?”

There was a consensus among students contacted by The Phoenix, regardless of their opinions on what happened to Phi Psi, that the handbook was too vague.

“Our college handbook needs to be made more clear,” List said.

Rodriguez said the school was aware of this perception and will try and make the handbook more explicit. The administration, for example, has considered adding a section to the handbook on student organizations that can articulate the differences between individual student conduct issues and organization conduct issues.

FIRE, for its part, is not sure what its next steps will be.

“That’s not something I have an answer to right now,” Harris said.