We recently discussed the case of University of North Carolina law student Sagar Sharma, a student of color, who faced a recall election as the first-year class co-president. The recall was based on Sharma stating that he did not consider an argument between two fellow students to be racist. Sharma ultimately prevailed in the recall challenge 74-60. Now there has been an equally disturbing development. Sharma decided to run for 2L Class President but yesterday was disqualified on the basis that he “disparaged” another candidate and ran prematurely for the position under the election rules. The charges are connected to the prior controversy and raise serious free speech and retaliatory concerns at the law school. 

Sharma was targeted at UNC Law School because he would not agree that a recent exchange between law students involved a racial insult. Two students were arguing over privilege and colonization. One student told the other that “You are an American attending an elite law school in the 21st century. If you are looking for a good cause, you can always travel to Cameroon and fight the colonizers there.”  The first student immediately objected and asked “Did you just tell me to go back to Africa?” That led to other student to clarify that he was simply responding to the point that there are still fights going on against colonization: “What? Dude what are you saying? I’m saying that people talk about colonization like it we’re [sic] all culpable for great evil. My point is that if you want to fight colonization, there are actual civil wars occurring now between natives and colonizers (like in Cameroon).”

The first student refused to accept that interpretation and declared  ”Your point is racist.”  That led to a complaint to the law school in a letter and accompanying petition demanding action from the law school.

Sharma became a target when he stated that he did not view the comment on Cameroon to be racist when read in the context of the conversation. That led to the campaign to recall him.

After successfully fighting the recall. Sharma decided to run in the next election cycle for 2L president. He apparently mentioned his intentions in an interview with the site Daily Wire.

In his election, Sharma was opposed by one of the organizers of the campaign against him.  In this campaign statement, Sharma noted that this student made a racially insensitive remark about him that he simply wanted to join the “white boys club.” In his March 19th statement, Sharma made reference to the recent controversy and stated:

My opponent is running on a campaign of “unity and togetherness.” However, this same candidate has made concerning comments about my intention to join the“white boys club.” As an Indian-American, I am proud of my beautiful and vibrant heritage, and I would never give up my ethnicity to feel accepted by another group of people.

Being a lawyer requires a certain level of decorum and professionalism within the institutional setting. There is no room for insults and anger. One must be willing and able to hear diverse viewpoints and assess situations pragmatically. Being a leader of law students requires these same traits. I have done everything in my power to embody these principles this year, and I will continue to do so as your 2L Class President.

Sharma was then informed that he was subject to charges for violating the student government bylaws.  The charging notice cited two provisions.  First is SBA By-Law 11.2 entitled “Lie about or disparage another candidate.” The second is SBA By-Law 11.3 entitled “Campaign prior to or after the designated campaign period.”  The student government then states in a conclusory manner that Sharma was found guilty on both charges and disqualified. The letter however fails to address obvious defenses to the charges.

On By-Law 11.2, Sharma posted the specific attack of the students about his desire to “join the white boy’s club.” It is a racially insensitive and insulting comment in its own right. It is clearly not a “lie” unless Sharma manufactured the screenshot, which is not alleged. So the question is whether it is disparaging. The problem with such a rule is that it is hopelessly subjective and vague. In a real first amendment case, a court would have little patience with such a standard as a limitation on free speech. According to Merriam Webster that transitive verb can mean to “depreciate” or “speak slightingly about” or “to lower in rank or reputation.” Any political campaign will involve statements of comparison that could satisfy such a definition. That allows for selective prosecution and speech regulation.

Moreover, if a candidate has used racial slurs or insults, it is likely to be a matter of concern in the campaign. Presumably, if Sharma had used racist arguments or terms in the earlier controversy, it would have been legitimately raised as relevant to his qualifications. Indeed, to use a litigation term, his opponent could be viewed as “opening the door” to such rebuttal by raising the theme of unity in the aftermath of the controversy when Sharma believes that she helped fuel of a campaign of disunity.

The letter simply states that “We find that the comments were used to “lower in rank and reputation” your opponent. The letter offers no clue on how such lines are drawn — a dangerous ambiguous for free speech.

On SBA By-Law 11.3, there is only a single conclusory line: “The committee further finds you in violation of 11.3 due to your communications with the Daily Wire about your intentions to run for SBA 2L Class President and statement do fall outside the designated campaign period.”

Again, there is no indication of how the student government is defining critical terms. Stating that you are going to run for an office does not constitute a campaign for most people. Sharma was the subject of a national controversy and was speaking with the press.  This sanction would discourage students from going to the media to expose abuses from racist commentary to anti-free speech measures. Moreover, if acknowledging an intent to run for another office is “premature campaigning,” it would mean that any oral or written publication of that intent would be a violation. It would mean that his opponents could be disqualified for emails or texts informing others that they will be running.

One obvious interpretation of this rule is it prohibits the posting or distributing of campaign material or holding campaign events. Clearly students will be telling others of their intention to run for office and lining up supporters in anticipation of such campaigns. Indeed, on the first day of the campaigning season, posters do not just magically and spontaneously appear. They are printed and distributed by prior arrangement of the student and any supporters.

The use of such ill-defined terms to disqualify Sharma after the recent controversy is deeply concerning. These vague provisions defy an intelligible notice for students on what is prohibited and what is allowed in these circumstances.   The Supreme Court has long opposed such vague terms as the basis for sanctions not only as a free speech matter but a matter of due process. For example, in reviewing a criminal law (which is admittedly raises a more heightened concern), the Court in Connally v. General Construction Co., 269 U.S. 385, 391 (1926) stated:

[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

While this is clearly not a penal statute, the concern is equally present that the standards do not allow people of common intelligence to clearly discern where the line is drawn between prohibited and permissible conduct. The use of such vague terms in the aftermath of the earlier controversy raises the specter of retaliation and arbitrary or selective enforcement.

A review of the by-laws for the UNC Law School only magnifies these concerns.  It turns out that the prohibitions are just stated and not defined. What is also curious is the interplay of the provisions. For example, section 11.1 prohibits the “bring[ing of] false or malicious charges against another candidate or party.” That would suggest that you are only prohibited from false or malicious charges, not any charges. Here Sharma is alleging that his opponent made racially insensitive remarks. He is not charged with lying about such comments and there was no finding on racially insensitive character of his opponent’s remarks.  So how do sections 11.1 and 11.2 relate to each other? If you are allowed to make charges in the campaign, then such charges will necessarily be “disparaging” on some level.

This may be case for applying a type of avoidance canon. The avoidance canon in judicial opinions applies “[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such a construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). There is narrower interpretation possible in this controversy under a type of ejusdem generis construction (“of the same kinds, class, or nature”).  Section 11.2’s meaning could be read in light of both operative terms “lie about or disparage” to mean an attack without basis or legitimate cause. You can clearly make a charge against an opponent in a campaign. The school would presumably allow a candidate to point out that an opponent was previously removed for stealing money from the student recreation account.  That would to be a “false or malicious charge” under Section 11.1 and thus not prohibited.  It is certainly disparaging but it is not false.

Absent such a saving interpretation, the UNC rules are lost to an absurd overreach or vagueness. It would bar any allegations of personal or official wrongdoing in the history of a candidate. A student could be a raving lunatic or racist or proven thief of student funds. Yet, under this expansive reading, an opponent could not reference any of those disqualifying elements. You could be running against (a recently released) Bernie Madoff for class treasurer but not be able to refer to his history of Ponzi schemes and self-dealing. You could only discuss your disagreement over what bars might be chosen for Thirsty Thursday events.

In some ways, this disqualification is more serious than the earlier effort to recall Sharma. This is an official decision of the student body to remove a student from the ballot. As a law school, UNC should be particularly demanding in the protection of free speech and due process in such controversies. This action seems not just casual but virtually conversational in the basis for the sanction.

As future lawyers, the UNC student body should strive for a more credible and fair process, particularly in light of these serious free speech and due process concerns.