Kansas State pressured to expel student for George Floyd tweets. But is that legal?
Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms:
Can the university legally kick out a student for exercising his First Amendment rights?
“A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor.
“And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.”
Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon. The first one said, “Congratulations to George Floyd on being drug free for an entire month!”
Responses immediately began pouring in from across the country. Most denounced the tweets, and many called for K-State to take immediate action.
On Monday, the university released a letter from President Richard Myers that said he was asking campus administrators to “fast-track” new school policy that will “combat racism and bigotry and other forms of social injustice” across campus.
On Sunday, every active player on the football team’s roster announced they would not “play, practice or meet” until the university devised a policy that would allow a student to be expelled for displaying “openly racist, threatening or disrespectful actions” toward any of their fellow students. That proclamation came a day after several K-State athletes threatened to boycott all team activities unless the university took action against McNeil.
But nationally, others, including white nationalists, defended McNeil and said his tweets were simply a joke. Among them was Nick Fuentes, a leader of the America First Groyper movement, a loose network of white nationalists and far-right provocateurs.
Protest planned
Myers said he had heard from “hundreds, if not thousands” of people connected to the university who are upset about McNeil’s tweets.
“We’ll talk about these action plans in K-State Today later this week,” he said. “We’ll make every effort to make sure everyone’s voice is heard as we address these very serious concerns.”
Myers called for “peaceful protests” to “let those who spew hatred and bigotry know that we have an even stronger voice.”
A student-led community protest is planned for 4 p.m. July 4 in Manhattan.
Tori Swanson, a K-State senior studying psychology and an organizer of the event, tweeted, “I want to make it CLEAR that we are not marching against J*den McN*il as an individual, we are protesting against ALL of the racism that our university has for so long swept under the rug. …That tweet is NOT what got the ball rolling, it was THE LAST STRAW.”
Myers said that as president of the university he is “willing to join these protests and amplify your voices, particularly for those individuals from marginalized populations who are the most vulnerable in these situations.”
In his statement, Myers talked about his time as an Air Force fighter pilot in Vietnam, where he risked his life and agreed to “die if necessary” to defend the Constitution, “including freedom of expression.”
Carl Tobias, a law professor at the University of Richmond School of Law, said it could be possible for K-State to expel McNeil if it had a policy that deals with such issues.
“I think the university may be in a difficult position, but if it has procedures that it can follow, they can probably impose penalties if there’s some violation of those procedures,” he said. “Free speech doesn’t protect everything. And it may be that this crosses some line for the university.”
Tobias said, however, that taking such action would likely require due process.
“Giving somebody due process takes time to do it right,” he said. “You may need to have a hearing, you may need to investigate. And you can’t turn that on a dime.”
Threats on Twitter
Meanwhile, the issue continues to play out on social media.
K-State spokesman Jeff Morris said the university is investigating possible threats allegedly made against McNeil and student athlete Christianna Carr. But Morris said that due to university policy, he could not discuss details of the threat investigations.
“Any time a student reports a threat, the university has well-defined threat management processes we follow,” Morris said. “If necessary we reach out to campus police and do what we can to ensure their safety.”
He said any violation of the university’s Code of Conduct would be reviewed by K-State’s Student Governing Association.
On Saturday afternoon, Carr tweeted a direct message she said she’d received that showed a partial caricature of Carr topped with a photo of her face hanging from a noose tied to a tree. Carr wrote: “If you ever think that racism isn’t real & that all of this is just hate comments and I’m just on twitter crying about basic human rights … Just remember that me (A 20 year old African American female) got this sent to my DM’s last night.”
McNeil has tweeted numerous threatening posts directed at him, including one that said he should be lynched and another that called him a “dead man walking.” Another person said that if he returned to Manhattan and McNeil was still there, “I’m gonna remove his fingers with an ax & a blow torch” and “extract every other tooth, top and bottom, making eating thicker than oatmeal impossible.”
The man who allegedly posted that comment said later that it was a joke. He said he’d posted it on a parody account that someone had created using McNeil’s Twitter handle.
The K-State police department referred questions to Morris about whether it had started an investigation into threats against either McNeil or Carr.
Riley County Police said that while they are aware of the post involving Carr, they had no record of a threat complaint from her. In cases of threats on the internet, police spokesman Josh Kyle said the department “relies on the victim making a formal complaint” before investigating, “but obviously, we are monitoring the situation.”
Kyle said that as of Monday morning he was not aware of any reports that McNeil had made to police about threats.
McNeil made headlines in February when a national watchdog organization issued a report about the formation of America First Students at K-State. The Institute for Research and Education on Human Rights said the group was created as part of an effort by white nationalists to repackage their bigotry through a new mainstreaming strategy that focused on college campuses and Trump supporters.
When The Star wrote about the report, McNeil denied he was a white nationalist. But in late February, he attended a gathering outside Washington, D.C., posing in pictures with well-known white nationalists.
McNeil has described America First Students as “a campus conservative organization defined by our support for closed borders, traditional families, the American worker, and Christian values.”
Morris said McNeil’s group is currently not registered on the campus because of lack of membership.
“Independent student organizations need to have at least five members and renew registration each year,” Morris said.
McNeil, whose Twitter following has gone from around 19,000 to more than 32,000 since Thursday, talked about the issue late Friday afternoon on DLive, a decentralized network for live streaming videos that some use to stream controversial content.
“I’m the bad guy because I made an edgy joke,” he said, complaining that he was getting threats and people were giving out his personal information. “These people are Satans. They’re f------ disgusting.”
He said, “I’ve been talking to a few lawyers, and we’ll see what K-State does. The whole system is rigged against us.”
Twitter temporarily suspended McNeil’s account on Saturday, saying two of his posts violated the rules for “glorifying violence.” The suspension was lifted later Saturday, but early Sunday the account was locked.
“My account was just locked again (check my Telegram) and I was forced to delete the original Tweet about George Floyd. Unreal,” McNeil posted at 4:40 a.m. Sunday. But McNeil was back online again later in the day after removing the offensive tweets.
Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking.
“If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.”
Tushnet acknowledged that the incident puts university officials in a difficult position.
“That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”
Includes reporting by The Wichita Eagle’s Kellis Robinett.
This story was originally published June 29, 2020 at 5:50 PM with the headline "Kansas State pressured to expel student for George Floyd tweets. But is that legal?."
