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Having spent the last decade defending student and faculty rights, I’ve learned a couple of things about exactly what type of campus civil liberties violations receive the most media attention. It’s not always what one might expect.

For example, I remember feeling shocked that a student’s expulsion over a Facebook post protesting the construction of a parking garage didn’t warrant above-the-fold coverage. I was amazed that students blacklisted for complaining to administrators about being subjected to mandatory transvaginal ultrasounds, performed by their peers, somehow didn’t go viral and make its way onto every social media timeline in the country. And my colleague Samantha Harris just penned a for Vox about the relative media silence regarding Princeton University Professor Keeanga-Yamahtta Taylor, who has received death threats and been forced to cancel appearances following her Hampshire College commencement address last month.

On the other hand, sometimes I know exactly when a situation will garner wall-to-wall press coverage. If something controversial happens at Harvard, for example, ��֭����’s inbox lights up very quickly. (I have some theories about why this is so, but I’ll save them for a rainier day.) Even gets in on the act.

True to form, for the last two days, I’ve fielded phone calls about Harvard College’s decision to extended to 10 students who participated in a private “meme thread” on Facebook, posting in an apparent effort to be as offensive as possible. (If you’re of a certain age and don’t know what a meme thread is, check out this from The Chronicle of Higher Education.)

Here’s what I told the journalists I spoke with from , , and : If the students had been full-fledged Harvard students posting these memes in their private Facebook group, then punishing them would violate Harvard’s promises of free expression. Indeed, I noted that just a few weeks ago, Harvard President Drew Gilpin Faust extolled the necessity of free speech in the speech she delivered for Harvard’s 366th Commencement. President Faust said that Harvard’s “values and our theory of education rest on the assumption that members of our community will take the risk of speaking and will actively compete in our wild rumpus of argument and ideas”:

It requires them as well to be fearless in face of argument or challenge or even verbal insult. And it expects that fearlessness even when the challenge is directed to the very identity — race, religion, gender, ethnicity, sexual orientation, nationality — that may have made them uncertain about their right to be here in the first place. Demonstrating such fearlessness is hard; no one should be mocked as a snowflake for finding it so.

Hard, but important and attainable. Attainable, we believe, for every member of our community.

Were these 10 students freshmen, sophomores, juniors, or seniors, the College’s actions would have directly contradicted President Faust’s observations and Harvard’s pledge.  

Of course, the wrinkle here is that the students have only been offered admission, and it isn’t clear whether any of them have yet paid deposits or tuition that would afford them the protection of some kind of contractual relationship with Harvard. Even if they had, the Harvard Crimson reports that admitted students are the College “reserves the right to withdraw an offer of admission under various conditions including if an admitted student engages in behavior that brings into question his or her honesty, maturity, or moral character.”

So, as I told the journalists, the question presented was a new one to me, although I suspect it won’t be the last time we see admissions offers extended to students revoked following controversial social media posts. (And it’s worth noting that FIREhas praised that would protect students from being required to hand over social media passwords to colleges and universities.)

I also made one other point in speaking to the reporters. I noted that while Harvard’s decision might be permissible, given the morals clause in the admission offer, it still might be an unfortunate outcome for both the students and the college. As I The Mercury News’ Emily DeRuy:

And, in Creeley’s view, at least, Harvard’s decision is unfortunate. “Sometimes the punishment of hurtful, offensive speech misses an opportunity to educate,” he said, “and I think that’s what colleges and universities are particularly well equipped to do.”

I made a to The Boston Globe’s Laura Krantz:

Some higher education specialists call the punishment appropriate, but others say that Harvard ignored its own claim to embrace free speech and that it missed an opportunity to educate those students about their poor choices.

“I don’t know what lesson these students have learned, other than to keep their mouth shut,” said Will Creeley, a senior vice president at the Foundation for Individual Rights in Education, based in Philadelphia.

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“I can help but think that no matter how offensive these jokes may be to most if not all, that there’s been an opportunity missed in terms of the possibility of educating these students,” Creeley said.

In other words, kicking these students out before their college education has begun means that they won’t learn why their professors and peers might have found their posts shocking or offensive. They won’t have their ideas or sense of humor informed, tested, refined, or expanded by interacting with their classmates. Instead, they’ve learned only to self-censor. That’s a net loss, and it forsakes the educational purpose of a liberal arts education. Even — and perhaps especially — if one believes the memes that the students posted are morally repugnant (and not, say, the latest iteration of a tradition of deliberately transgressive, tasteless humor that stretches from “The Aristocrats” to Rabelais and much further back still), the most productive response would have been to teach the students why.

For this point, I owe a debt to Jamelle Bouie, Slate’s chief political correspondent. Writing in 2015 about the University of Oklahoma’s decision to expel fraternity members recorded singing a racist chant on a bus, Bouie that the institution had missed an opportunity:

As far as the University of Oklahoma is concerned, I should say I’m not thrilled with the punishment. Disbanding the fraternity might be justified, but expelling students for hate speech is an extreme response that runs afoul of free-speech norms, if not the First Amendment.

Education would be better. The University of Oklahoma is two hours away from Tulsa, which in 1921 was the site of one of the worst anti-black race riots in American history. More than a thousand whites stormed the black district of Tulsa and razed it to the ground, killing hundreds and leaving thousands homeless and destitute. Black Tulsa never recovered, but memories of the attack live on among descendants of the victims.

Don’t expel the boys. Bring them to Tulsa. Have them see the memorials and talk to the children of survivors. Give them a chance to see what their words actually mean, and whether they want to be the kinds of people who sing about lynching for fun.

I bring up Bouie’s sharp observation often when I speak to students, faculty, administrators, and attorneys across the country because it illustrates the great hope of freedom of expression: As long as there’s the possibility of further conversation, we can learn from one another.

Finally, check out my former colleague Erica Goldberg’s posts on her blog for a very useful discussion of the and a . Erica followed her extremely productive stint as a Justice Robert H. Jackson Legal Fellow here at FIREwith a three-year teaching fellowship at Harvard Law School, and I’m happy to give her the last word here:

A major appeal of irreverence is its assertion of independence over strong social norms.  Strong, prevailing social norms can feel oppressive at times, even if they are good norms, and the rebellion of breaking social taboos demonstrates that we can still think for ourselves.  Joking also eases tension around difficult topics, issues that have become polarized, or events that our culture depicts only in black and white.  I take the Holocaust extremely seriously, and feel great anger at how the world watched the Jews of Europe get exterminated.  But I can enjoy a Holocaust joke in the right setting.  The two are not mutually exclusive.

The idea that some topics are above humor is misguided.  Humor is inherently subversive.  By ferreting out the members of this private chat group, requiring that they present to Harvard every meme sent over the chat, and revoking their acceptances, Harvard has proven that there is an oppressive force to transgress.

I love Harvard.  I taught Legal Research and Writing at the Law School for three wonderful years.  Harvard is brimming with promise and significance.  The brightest minds congregate to discuss our country’s deepest, most complex problems.  How Harvard approaches education sets trends for the rest of the country.  I hope Harvard realizes the error of its ways before it alters our understanding of the role of the university.  Harvard should not teach its students to be afraid to joke in private, among people willing to joke back.  Harvard should not teach students to turn on each other for speech.  FIREshould not feel compelled to speak to a newspaper only under condition of anonymity, for fear of being punished for mere association.  Harvard should not teach its students that it is acceptable for a university to ask students to account for every message and picture they send in a private chat group.  These are not the tactics nor values of our country’s premier place of learning.

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Humor is not a threat.  I highly doubt these prospective students find abuse of children sexually arousing, as they joked.  This was an absurd way for incoming freshmen to prove to themselves that they can still be ridiculous and inappropriate, even if Harvard is a serious place.  These memes were exchanged in a private group that was in no way affiliated with Harvard.  These students may not go to Harvard, but they have unfortunately been taught a valuable lesson.