Julianna Battenfield† | 3 Regent J. Glob. Just. & Pub. Pol. 91

ABSTRACT

In June of 2015, a young South African girl named Zizipho Pae (“Zizi”), who was the Acting President of the Student Representative Council (“SRC”) of the University of Cape Town (“UCT”) representing a student body of approximately 27,000, posted as follows on her personal Facebook page: “We are institutionalizing and normalising sin. May God have mercy on us.” Even though the post did not say this explicitly, her post was intended as a response to Obergefell v. Hodges. In protest, members of the University’s Queer Revolution broke into her office and, among other things, vandalized it, then took off their clothes, took pictures, and posted them on her Facebook page. They also filed a “hate speech” complaint against her with the University and reportedly also with the South African Human Rights Commission, had her expelled as member of the SRC without proper reasons or process, and almost got her scholarship revoked. The group quickly accomplished all of this despite the fact that there is a cut and dry right to the freedom of speech and expression in the South African Constitution. After requesting the University to review the SRC’s decision to expel her, the Vice-Chancellor of the University reinstated Zizi as member of the SRC because her post was protected by the Constitution. However, what if Zizi had been a student at a university in the United States? Could she be removed, prosecuted, or expelled for her statement on Facebook?

Oliver Wendell Holmes once said, “The best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out.” Freedom of speech has long been a stalwart principle that has kept the United States the most powerful nation in the world, but in recent years, anti-discrimination, harassment, and hate speech codes within public university student handbooks have severely limited students’ freedom of speech and expression and have threatened that foundational freedom. This Note suggests that current case law in the United States is not strong enough or clear enough to protect students’ right to freely exchange beliefs in the free marketplace of ideas because oftentimes university policy will either trump a student’s constitutional right or unconstitutionally punish students for constitutional speech because university administrators are ignorant of the law. This Note also proposes an alternative framework and solution that allows for courts to balance both the university’s authority to limit speech according to legitimate pedagogical concerns and the students’ right to freely express themselves and exchange ideas as they should so see fit. Incorporating a clear framework in student handbooks and in case law that honors this balance according to the law will promote consistency, reliability, and objective analysis by reviewing disciplinary hearing boards and courts, and will ultimately ensure an appropriate balance between the freedom of speech and university interests.

INTRODUCTION

In response to a United States Supreme Court case, 1 a young South African girl named Zizi Pae posted a thought on her Facebook wall just like she did most every other day: “We are institutionalizing and normalizing sin! . . . May God have mercy on us.”2 Then, June 28, 2015 turned into a quite unordinary day for her. Zizi was the acting President of the Student Representative Council (“SRC”) of a student body of almost 27,000. 3 A few hours after she posted, her office was broken into by members of the campus group Queer Revolution, 4 had her Scriptures ripped off the walls,5 and had semi-naked pictures of the members in her office posted on her Facebook page with the caption “[We are] [b]ringing sin into the Holy SRC [office] of Zizipho Pae.”6

The University of Cape Town Queer Revolution (“UCTQR”) demanded Zizi’s resignation “on account of her queer antagonistic bigotry,” 7 so the SRC immediately removed her from her presidential duties and then attempted to hold a formal hearing on the matter.8 The hearing unfortunately dissolved into a shouting match at which members of the Lesbian, Gay, Bisexual, and Transgender Plus (LGBT+) community took their clothes off and commanded the chairman to rule in their favor,9 so the chairman adjourned the meeting and left the room. Unabated, the remaining members quickly replaced him with a newly elected chairman, and the members voted to dismiss Zizi from the SRC without following proper due process procedures and without giving her a chance to testify on her behalf according to those same procedures. 10 The UCTQR immediately filed a complaint against her with the Human Rights Commission,11 and a lobbying push began with the goal of seeing Zizi lose her scholarships to the university. 12 She was called an “idiot,” a “homophobe,” an “ignorant b****”,13 and received hundreds of hate mail messages in her Facebook inbox. 14 Then a Member of Parliament, Mr. Marius Redelinghuys, began to speak out against her and demand that she retract her statement through “a long series of mocking, insulting and other pro-homosexual messages which amount[ed] to harassment.” 15

†B.A. 2011, Furman University; J.D. 2017, Regent University School of Law.
1 Michael Gryboski, ‘May God Have Mercy on Us,’ Says Christian Cape Town Student Forced Out of Leadership Role for Facebook Comment Opposing Gay Marriage, CP WORLD (July 28, 2015), http://www.christianpost.com/news/may-god-have-mercy-on-us-says-christian-cape-town-student-forced-out-of-leadership-role-for-facebook-comment-
opposing-gay-marriage-142005/. Obergefell v. Hodges, 135 S. Ct. 2584, 2619, 2642–43 (2015), legalized same-sex marriage within all jurisdictions in the United States.
2 Zizipho Pae, FACEBOOK (June 28, 2015), https://www.facebook.com/zizipho.maduna/posts/1146044868755871.
3 Statistics, U NIV . OF CAPE T OWN, http://www.uct.ac.za/about/intro/statistics/ (last visited Dec. 22, 2015) (noting the total number of students enrolled as of 2014).
4 UCT Student Leader Victimised Over Christian Viewpoint on Same-Sex Marriage, GATEWAY N EWS (July 2, 2015), http://gatewaynews.co.za/uct-student-leader-victimised-over-christian-viewpoint/.
5 Christian Student Threatened for Opposing Gay Marriage on Facebook,
CHRISTIAN INST. (July 16, 2015), http://www.exministries.com/christian-student-threatened-for-opposing-gay-marriage-on-facebook/.
6 Ra’eesa Pather, UCT Queer Community Sets Its Sights on Pae, THE DAILY VOX (July 3, 2015), http://www.thedailyvox.co.za/uct-the-queer-movement-has-been-born/; see Carlo Petersen, UCT Homophobe Gets Booted Out, IOL CAPE TIMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
7 Id.
8 UCT SRC, FACEBOOK (June 30, 2015), https://www.facebook.com/uct.src/photos/a.905100332874551.1073741833.895318217186096/94797093525417/.
9 Freedom of Religion S. Afr., My Story by Zizipho Pae-Part II, Y OUT UBE (Aug. 11, 2015), https://www.youtube.com/watch?v=HTMuJJlIrTY [hereinafter FORSA].
10 UCT SRC, SRC Minutes from the 21st of July 2015, F ACEBOOK (July 21, 2015), https://www.facebook.com/uct.src/photos/a.962140463837204.1073741838.895318217186096/962140477170536/?type=3&theater.
11 Carlo Petersen, UCT Homophobe Gets Booted Out, IOL C APE T IMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
12 Pather, supra note 6.
13 Andre Viljoen, Christian Leaders Speak Out Against Victimisation of “Expelled” UCT Student Leader, GATEWAY NEWS (July 23, 2015), http://gatewaynews.co.za/christian-leaders-speak-out-against-victimisation-of-uct-student-leader/.
14 Freedom of Religion S. Africa, supra note 9.
15 Carlo Petersen, DA MP’s Comments ‘Unacceptable’, IOL CAPE T OWN (July 28, 2015, 2:23 PM), http://sbeta.iol.co.za/news/politics/da-mp-s-comments-unacceptable-1891827.