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Wednesday, September 19, 2018

Guest Commentary

Guest Column: VP sanctions violate US, SGA Constitutions


Photo by Trey Strange

Student Government Association President Shane Smith’s sanctions on his vice president has made national news. | Trey Strange/The Cougar

Students have rightly expressed their outrage over Student Government Association Vice President Rohini Sethi’s comment on Facebook. It displayed a disregard for the societal issues giving rise to the disproportionate number of African-Americans being killed by police officers.

As the French philosopher Voltaire has famously said, however, “I detest what you write, but I would give my life to make it possible for you to continue to write.”

This fundamental understanding of the right to express is one of the underpinnings of our great republic: All opinions, particularly unpopular ones, have some value and can contribute to the marketplace of ideas.

It is one of the primary reasons our Founding Fathers adopted the First Amendment as the most paramount of rights. I believe it is apparent that Sethi’s constitutional right to freedom of speech under the First Amendment has been violated.

The argument that the First Amendment doesn’t apply in this situation because the Student Government Association is not a governmental entity ignores case law. The Eleventh Circuit U.S. Court of Appeals found that student governments of state universities are, in fact, state actors for the purpose of both the First and Fourteenth Amendments in Alabama Student Party v. Student Government Association of the University of Alabama.

When I served as Speaker of the Senate during the 41st Administration, I worked on a committee which proposed integrating all rights contained in the U.S. and Texas Constitutions into the SGA Constitution.  Today, that provision exists as Section 2.01 of the SGA Constitution.

This leaves us with whether the sanctions themselves infringed on Sethi’s right to free speech.  Some have argued that, as an elected official in SGA, Sethi has an obligation to refrain from making statements that would reflect badly on or in any way interfere with the work of the organization. Not true.

Sethi does not waive her constitutional rights upon taking the oath of office.  If she stood up in the middle of an SGA meeting and started disrupting it with offensive statements — yes, she could’ve been punished.

Her offending statement in this case, nevertheless, was made on her personal Facebook. It did not in any way invoke SGA or even involve an issue concerning SGA.  It was purely political speech, and such speech is highly protected under the U.S. Constitution.

What is even more concerning to me as an attorney is that the SGA Senate decided to pass a bill creating a one-time ability for SGA President Shane Smith to sanction Sethi.

In essence, the SGA Senate passed what is called a “bill of attainder,” which were used for abusive purposes by the British Parliament in the 18th century. Our Founding Fathers then prohibited them in Article I, Section 9 of the U.S. Constitution.

For the SGA, however, the greater worry here is the violation of the separation of powers contained within the SGA Constitution.  Only the judicial branch is given the power to adjudicate disputes such as these, and giving the SGA President the power to punish a fellow member of the executive Branch creates an extraordinarily dangerous precedent.

It also undermines the due process afforded to someone in a trial.

One does not need to agree with what Sethi said to be concerned about a violation of her rights.

While the rest of SGA may find it difficult, politically, to handle this situation by balancing the concerns of students and Sethi’s rights, this is precisely the sort of situation where the preservation of a person’s rights are most important.

Bobby L. Warren is a licensed attorney-at-law and an alumnus from the UH Law Center Class of 2005. He can be reached at [email protected]

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