Earlier today I disagreed at length with a comment by The FIRE's Adam Kissel regarding a case at Colorado College and whether official condemnation should be considered "punishment" for the purposes of free speech analysis. Adam has responded quite graciously and at length here. I think his response does an excellent and useful job in clarifying some of the terms used in the free speech discussion, and offers some clarity that I did not.
I believe we're in agreement on the issue of condemnation as punishment. There remains the issue of official "censure" or "reprimand" or "letter in the file" as a sanction, and whether such measures rise to constitutional dimensions. I think that the cases I cited cast, at least, doubt on the proposition that an official censure or letter in the file, absent an officially imposed corresponding punishment, rises to the level of a constitutional violation. Hans Bader suggests that I overstated the uniformity of the caselaw in this regard, and given his background, I'll definitely look at his cases as soon as I'm spending a bit less time trying to stop toddlers from hurling themselves into the Pacific this week.
Adam Kissel and my co-blogger Patrick both suggest that a "letter in the file" or censure can have a devastating impact on a student's prospects for jobs or graduate school. I have no doubt that is true. But is that a basis for distinguishing what is legally cognizable punishment and what is not? After all, in the age of Google, I suspect that a university president's public condemnation can have grave consequences as well. I'll think about it some more.
I appreciate Adam Kissel's thoughtful response.
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