WASHINGTON, D.C. (April 16, 2015): George Washington University is gearing up to permanently ban from campus an important religious symbol, one which is sacred to many Hindus and Buddhists in India and elsewhere, because it looks like something else which may upset the sensibilities of some students.
George Washington University banning religious symbol
The hearing will be held under the auspicious of Gabriel Slifka, George Washington University Director of the Office of Student Rights and Responsibilities, and Peter Konwerski, VP and Dean of Student Affairs.
It’s like banning the 6-pointed Jewish Star of David because some people might mistake it for the pentagram symbol and human sacrifice, or expelling a student for using the word “niggardly” because other students may mistake it for a racist word and get upset, says George Washington University public interest law professor John Banzhaf.
Banzhaf, in a legal memo to key campus officials, has suggested that the University and its President may already be liable for defamation and other civil torts.
Also, he argues, all those who participate in the coming hearing to finalize the initial private ruling may be legally liable for discrimination based upon religion in violation of the D.C. Human Rights Act [DCHRA].
When a Jewish student studying Eastern religions recently returned from India with a religious symbol sacred to many Indians and others called a Sanskrit svastika [with a “V”], but another Jewish student initially mistook it for a Nazi swastika [with a “W”], there was initial concern that it was meant as a threat to Jewish students. However, within hours, all was explained, the student withdrew his complaint and said he had nothing to fear, and the campus police discontinued their investigation.
But apparently because there has been previous anonymous postings of real Nazi swastikas on campus which had triggered tremendous pressure from Jewish groups, George Washington University’s President Steven Knapp, without any hearing, banned the Jewish student from campus until a forthcoming hearing at which he faces permanent expulsion – an expulsion largely based upon George Washington University’s own failure to recognize the difference between a sacred Sanskrit symbol and a Nazi swastika, says Banzhaf.
The effort of that decision, especially if the expulsion is finalized at the forthcoming hearing, will be to effectively ban a sacred religious symbol from the campus, since any one displaying it, even for purely individual religious reasons, would likewise face immediately expulsion.
The University has seemingly taken the position that posting anything which could be mistaken for a Nazi swastika – even if it is of a different color and orientation, and/or might be seen as “rotating” in the opposite direction – cannot be displayed on campus, even by students who are Hindus or Buddhists.
This effective banning of a sacred religious symbol, simply because it may look like something else, seems to be unprecedented. What could be more discriminatory than prohibiting Hindus and Buddhists from displaying their sacred Sanskrit svastika while permitting Christian, Jewish, and others to display their symbols, perhaps on a T-shirt?
Banning one religious symbol – and even things that look something like it – while freely permitting the display of other religious symbols, would seem to be a clear violation of the DCHRA which prohibits discrimination based upon religious beliefs, says Banzhaf. Furthermore, any individual who aided and abetted that discrimination can be charged under the act, even if the University itself is not charged.
The professor says he has used this legal technique successfully several times, and finds it very effective because individuals can find it intimidating to have their credit ratings lowered, their ability to sell or even re-finance their homes temporarily suspended, etc. as a result of being charged with discrimination and being sued for attorneys fees as well as damages.
Even if the student had posted an actual Nazi swastika instead of an Indian religious symbol, he would still be protected by free speech and academic freedom, unless it posed a clear and present danger – i.e., posted with the clear purpose of putting students in fear of immediate physical harm.
The law is clear that free speech and academic freedom protects the mere display of symbols, no matter how distasteful or upsetting they may be to some students, unless their display creates a clear and present danger, says Banzhaf, who has won important cases involving free speech, and testified before Congress as an expert witness on the topic.
Indeed, it is highly unpopular ideas and very distasteful symbols which truly need protection under free speech and academic freedom, since no one gets expelled from college for displaying pictures of cute babies and puppies, or for praising apple pie and motherhood.
Perhaps the most famous case involving a true Nazi swastika occurred when the courts upheld the right of a white racist party to march through Skokie Illinois in full Nazi uniforms with swastikas, even though many of the elderly Jewish survivors of death camps experienced real fear as well as total revulsion.
The U.S. Supreme Court has said that free speech permits a fanatical religious cult to demonstrate outside the funerals of war heroes shouting and displaying vile slogans, to burn an American flag, and even to burn a cross – unless there is clear proof that it was done to threaten immediate violence.
George Washington University says that it “is committed to the protection of free speech, and guarantees students the right to “express opinions publicly and privately,” and even to “distribute pamphlets” and “conduct orderly demonstrations.” Court have frequently held that such official written promises provide students of private colleges with the same free speech protections as those who attend state institutions of higher education.
Unless and until George Washington University creates an exception in its academic freedom policy by banning the mere posting of certain symbols – or things that might resemble them – which some students might find offensive, any attempt to punish free speech which is now permitted can create legal liability, claims Banzhaf.
“If they are going to carve out exceptions to the general rule of permitting students to express opinions through symbols or words which other students might find offensive, they should do so openly and prospectively, and not expel students for doing something which the current policy now seemingly permits.
But adopting such a policy might prove as difficult as establishing a speech code, especially since all campus speech codes which have been challenged in court have been struck down.
In addition to banning Nazi swastikas and things that may look similar, the ban might have include a T-shirt now in the news reading “Eat. Sleep. Rape. Repeat.,” any depictions or caricatures of the Prophet Mohammed, images of fetuses, quotations from the Bible about homosexuality, a photo of the infamous “Piss Christ” museum exhibit, photos depicting slavery, a statute of a man in underwear from Wellesley, etc.
In addition to concerns about free speech and academic freedom, Banzhaf has been a major critic of the basic unfairness of most campus disciplinary proceedings, and one of his proposals for dealing with the problem has now been reported in the Chronicle of Higher Education, U.S. News, Washington Examiner, New York Times, and National Public Radio.
When dozens of law professors from major universities like Harvard and U. of Penn are publicly criticizing their own schools for violating students’ basis rights to due process and fundamental fairness, perhaps its time for the public – through the media – to become concerned.
Here in the nation’s capital, at a time when many are debating the issue of religious freedom in the abstract, a major university is preparing to expel a student for posting a religious symbol, and effectively ban that symbol and others which might resemble it, from the campus in an obscure proceeding.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf
