The law has always drawn a line between malfeasance and nonfeasance in considering unlawful acts, but Syracuse University is about to eradicate any real distinction in newly proposed rules by Professor Keith Alford, the university first diversity and inclusion officer. Under the new rules, students would be punished for simply witnessing “bias-motivated” incidents and “acts of hate.” The change was demanded by the #NotAgainSU which demanded expulsion for “individuals who witnessed the event or were present, but did not take part.”

Alford sent an email warning that students:

“The Code of Student Conduct has been revised, based on your input, to state that violations of the code that are bias-motivated—including conduct motivated by racism—will be punished more severely. The University also revised the code to make clear when bystanders and accomplices can be held accountable. The code will be prepared and distributed for students to sign in the fall.”

It does not go as far as the student group demanded in requiring expulsion, the rule also does not clearly state how silence or inaction will be judged in any given circumstance. It appears left up to the investigators. That uncertainty will prompt many to guarantee compliance by speaking or acting to avoid even the chance that they might be subjected to a highly damaging bias charge.  The school also warned that new cameras were being installed in “first-floor lounges,” “public areas,” and within residency hall elevators. Thus, any student who failed to immediately act would be observed and presumably at risk of being investigated or charged under the new rule.

Courts have long distinguished between malfeasance, misfeasance, and nonfeasance. In Bell v. Josselyn, 69 Mass. (3 Gray) 309, 311 (1855),  the court explained “Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all.”).  This distinction can be lost in some cases like corporate law or prosecutorial ethics where duties come with a duty to act in a particular fashion.

The concern raised by the Syracuse rule is that there remains controversies over vague universities standards on bias or race motivated violations including microaggressive language or actions.  Recently, a student writer at Syracuse was sacked for simply questioning the basis for claims of institutional racism. What is viewed as bias-motivated speech for some is viewed as political speech by others. The new rule would suggest that even students who do not agree that an incident is “bias-motivated” must still act to avoid scrutiny or punishment. Students could feel an obligation to prove that they are not racist by immediately and openly opposing such acts, lest they could be next to be accused.

Given the rising concerns over the erosion of free speech on our campuses, the punishing of students for nonfeasance for merely being witnesses or passive adds a new chilling element to speech. It is not just silencing those who now fear expressing their views on campus. It would now require speech and action to avoid possible discipline.  For those students, the new rule creates a “prove you are not a racist” (or biased) burden.

The Supreme Court has long treated compelled speech cases as some of the most serious denials of free speech. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), Jehovah’s Witness family challenged the mandatory Pledge of Allegiance. The Supreme Court struck down the rule as a denial of the students’ “freedom of mind” by forcing them to “declare a belief.” It stressed:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The Court has repeatedly overturned compelled symbols or speech that “invade[] the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”  Minersville District v. Gobitis, 310 U.S. 586, 642 (1940).

While nonfeasance penalties may find acceptability in some legal areas, it has long been anathema to free speech.  While Syracuse should be commended for seeking to strengthen its policies and programs fighting racism and other forms of bias, it should rescind this form of nonfeasant misconduct.