A Student Government Crisis at App State

An unfolding legal saga at the UNC-System institution may expose dramatic threats to free speech.

Appalachian State University is mired in a student government crisis. Not only has the university violated UNC-System policy and North Carolina law, but administrators have cracked down on students who cried foul, blatantly trampling their First Amendment protections.

App State’s saga began late last year, when second-year undergraduate (and then-Student Government Association senator) Hunter Clark led the impeachment of ASU’s student body president and vice president in his capacity as chair of the Senate Rules Committee. The allegations of malfeasance against the officers in question included abusing funds and threatening other student leaders. After the removals, the university enforced the proper protocols, following the line of succession in appointing a new president.

As regularly scheduled elections were approaching in February of this year, members of the student government received a letter from attorney Nathan Miller threatening to sue for defamation on behalf of the dismissed president and vice president. According to Clark’s own attorney, “the letter did not specify which statements were allegedly defamatory, nor did it allege any specific conduct which suggests the students acted with actual malice.” The latter is, of course, the standard for defamation lawsuits involving public figures.

Despite the frivolous nature of the threatened lawsuit, university officials seemed to panic.Despite the frivolous nature of the threatened lawsuit, university officials seemed to panic. A number of Clark’s fellow senators received a letter from Assistant Vice Chancellor Jeff Cathey stating that he and Vice Chancellor J.J. Brown had decided that all future SGA elections should be suspended “until the circumstances associated with the Nathan Miller letter are resolved.” This was a clear violation of UNC-System policy, which “insulate[s] student government elections at UNC constituent institutions from influence of University employees, administrators, and trustees.” The undergraduate senate duly passed a resolution reminding the institution of the proper role of student government.

The next week, Clark received an email demanding a meeting with fellow students. According to Clark in his communication with the Martin Center, the students present at the meeting (with the support of Vice Chancellor Cathey, who attended) demanded his resignation within 24 hours, based solely upon his “protected speech during senate meetings.” Were he to refuse, Clark would be reported for “bullying” under the Student Code of Conduct, though no specific allegations of such behavior were made.

Since student-conduct proceedings employ a “preponderance of the evidence” standard, Clark knew that he would not receive due process, and he chose to resign. (All assertions regarding Clark’s state of mind are based on his conversations with the Martin Center.) As Clark’s attorney stated in his previously mentioned letter, this forced resignation under threat of punitive action is a violation of the First Amendment, as held in Papish v. Board of Curators of the University of Missouri (1973).

Soon after Clark’s resignation, Vice Chancellor J.J. Brown suspended the student government’s “rules of engagement,” essentially stripping the association of its official recognition. It is entirely possible that the threats against Clark were intended to remove him from the undergraduate senate precisely in order to prevent his resisting the suspension of the association. According to Clark’s attorney, “Hunter’s absence from the meeting would guarantee almost no opposition to the administration’s plan to dissolve student government.”

In a conversation with App State’s student-run newspaper, Vice Chancellor Brown would go on to justify his move by citing a mental-health survey of the undergraduate senate, which found that “70 percent [of senators] … sometimes or never feel comfortable at Senate meetings.” In other words, a frivolous lawsuit and upset feelings persuaded a vice chancellor to violate the law and UNC policy.

By shutting down its SGA, App State did far more than interrupt a bunch of kids playing House.Student government associations play a crucial role in the university system, as highlighted by the UNC-System Policy Manual. Not only do SGAs engage students in “self-governance and civic responsibility,” they also represent the student body on campus and “assure that the interests of students are known to the Board of Governors during its deliberations.” As such, student governments are carefully protected by the UNC System and United States case law. By shutting down its SGA, App State did far more than interrupt a bunch of kids playing House.

Furthermore, North Carolina law states that “It is not the proper role of any constituent [UNC] institution to shield individuals from speech protected by the First Amendment, including, without limitation, ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” Clearly, offensive or uncomfortable circumstances are not sufficient justification for an administration’s sweeping action against a student government.

In addition to embroiling the university in what is likely to become significant legal trouble, App State’s decisions have seriously harmed the involved students. Rather than treating Nathan Miller’s lawsuit as the meritless case it was, administrators punished the students whom he threatened. Indeed, administrators’ malicious use of the student-conduct code against Hunter Clark appears to have been as illegal as it was abhorrent. The Foundation for Individual Rights and Expression notes that “bullying policies,” such as the one employed to force Clark’s resignation, “prohibit bullying in a problematic manner by including expression that is protected under First Amendment standards.” Appalachian State should revise its Student Code of Conduct to ensure that it cannot be weaponized against students for exercising their constitutional rights.

In his resignation letter, Hunter Clark stated that the administration’s actions “have been extremely distressing.” Due to his position as an engaged leader at App State and a pre-law student, his forced resignation has had a significant impact on his academic and career trajectories. Appalachian State, as a higher-education institution of the state of North Carolina, ought to staunchly defend its students and their unalienable right to freedom of expression. Yet when Hunter Clark requested help from the university in handling the lawsuit, App State did not offer meaningful assistance. It is deeply troubling that the university failed to uphold its mission and protect its students in this instance.

Administrators may well have done lasting damage to the spirit of open debate on campus.Reached for comment, the App State communications office told the Martin Center that “the student government was not shut down, nor was the student government disbanded. Rather the rules of engagement were suspended, and the organization has continued to meet each week to bring its constitution into compliance and address the challenges that have led to low morale and participation.” An Instagram post to the SGA’s account on Thursday contains similar language.

In response, however, Hunter Clark told the Martin Center that, while the student government was not officially “shut down,” the suspension of the rules of engagement has essentially curtailed all of its activities aside from Tuesday meetings, which are micromanaged by administrators. He further stated that the administration is “influencing a select group of members of the previous SGA (people who agree with them) into altering SGA drastically, going so far as to completely rename and remake student government institutions that have existed since 1959.” Additionally, Clark contends, the university has “removed the Student Judiciary,” which will grant administrators the “final and direct say on how SGA works in the future.”

Whatever the coming months hold for App State’s Student Government Association, it is almost certainly the case that the behavior of App State’s leadership will have a chilling effect on campus free speech. Students, especially members of the student government, will henceforth fear retaliation for speaking out against future administrative actions. UNC-System policy requires that “students, staff, and faculty have the freedom to discuss any problem that presents itself.” By acting as they did, administrators at App State may well have done lasting damage to the spirit of free inquiry and open debate on campus.

Harrington Shaw is an intern at the James G. Martin Center for Academic Renewal and a junior studying economics and philosophy at UNC-Chapel Hill.

[Editor’s note: An earlier version of this story stated incorrectly that Dean of Students Judy Haas was present at the meeting at which Clark’s resignation was requested. We regret the error.]