Rights in the News: Duke, Southwestern College Both Called Out for Campus Offenses
April 16, 2010
It is getting harder by the day for Duke University to defend in public its unjust and wildly skewed sexual misconduct policy, especially after the trio of columns hitting Duke over the policy this week--from Reason contributing editor Cathy Young in The Boston Globe, FIRE Board of Advisors member Wendy Kaminer in The Atlantic, and FIRE's Robert Shibley in The Washington Times.
Elsewhere, President Raj K. Chopra and his administration at California's Southwestern College (SWC) were awarded a 2010 Jefferson "Muzzle" award from the Thomas Jefferson Center for the Protection of Free Expression. SWC, which maintains an unconstitutional "free speech patio" and punished professors over a peaceful protest of impending budget cuts, gets hammered by Greg in his Huffington Post column, where he gives honorable mentions to Yale University and Bucknell University as well. FIRE, of course, has been on the scene at SWC from the beginning while the college has been earning its well-earned reputation as a laughingstock of free speech. See also Greg's columns on Temple University's shenanigans in the hours leading up to his speech there on Wednesday.
Finally, as we announced earlier today, FIRE Co-founder and Chairman Harvey Silverglate addresses the First Amendment freedoms about to be decided in the Supreme Court case of Christian Legal Society v. Martinez in a column in the Wall Street Journal. Oral argument is scheduled for Monday.
Permalink | E-mail comments | Posted by Peter Bonilla on April 16, 2010, at 4:57 PM
Official Online Release: FIRE's 2009 Annual Report
April 16, 2010
Today we are excited to release FIRE's 2009 Annual Report, which highlights the new projects we launched during our tenth anniversary year as well as our long-standing flagship programs. I encourage you to take some time to browse through the pages of the report to see what your support made possible last year; I think you will be impressed! We are so proud of the many accomplishments and successes we saw in 2009, and you should be too—without your consistent and generous support, none of this would have been possible.
To ensure that FIRE's 2010 report is filled with even more free speech victories, policy reforms, dedicated student activists, and groundbreaking legal decisions, I hope you will continue to support FIRE's work this year. You can donate online now, sign up for automatic monthly gifts (and get a FIRE mug or book!), or check out the many other ways to support our organization.
If you have any questions about FIRE's 2009 Annual Report, or if you would like to request a hard copy, please e-mail support@thefire.org.
Permalink | E-mail comments | Posted by Alisha Glennon on April 16, 2010, at 4:55 PM
Hurt Feelings Lead to 'Personal Abuse' Charge for Northern Michigan University Student President
April 16, 2010
Nearly two centuries ago, a brief respite in partisan bickering among our major national political parties led a journalist to coin the phrase the Era of Good Feelings to describe the early years of President James Monroe's administration. I open with this nod to our early history because the administration at Northern Michigan University (NMU) seems bent on forcing a similar aura to emanate from its student government. And if the students can't get it on their own, then darn it, NMU will do it by force, with threats and intimidation.
NMU's current controversy began with an April 1 letter authored by outgoing Associated Students of NMU (ASNMU) President Jason Morgan and published in The North Wind, a student paper at NMU ("ASNMU is standing up for students"). Morgan's letter responded to a letter printed days earlier from another NMU student ("ASNMU is going down the wrong path," March 25), in which the student asserted that the Associated Students' "well-respected and levelheaded treasurer resigned due to the nature of the members of the organization." Morgan replied to this student by contending that "the 'level-headed treasurer' would have been up for impeachment due to neglect of duties if he hadn't resigned."
Andrew Foster, the student treasurer in question, was understandably not happy with the remark. I don't blame him: reading in my campus paper that I was facing impeachment if I hadn't resigned my position wouldn't fill me with joy, either. However, rather than attempting to publicly correct the record via, for instance, The North Wind, which I imagine would have had little problem giving him the space, Foster instead took the matter up with NMU's Dean of Students. The next day, Morgan received a notice of charges from Associate Dean of Students Mary Brundage, informing him that he was being charged with "disorderly conduct" and "personal abuse" on the basis of eighteen words printed in The North Wind.
NMU's Student Handbook describes these violations as such:
2.2.9 Disorderly Conduct
(penalty: not less than warning probation; not more than suspension)
No students shall make any disturbance or threat of violence in or on any building or property owned or controlled by the University. In the interpretation and application of this regulation, either a disturbance or a threat of violence shall be sufficient to constitute a violation. Fighting, defined as engaging in and continuing when one has an opportunity to disengage from a physical struggle with another person, is specifically prohibited under this regulation.
[A disturbance, which is something less than threats of violence, is an interruption of peace and quiet, a violation of public order in decorum, or an interference with or hindrance of one in pursuit of his/her lawful right or occupation.]
[...]
2.2.21 Personal Abuse
(penalty: not less than disciplinary probation; not more than expulsion)
No students shall deliberately or recklessly injure, threaten, endanger, or degrade a member of the University community.
NMU's rationale for slapping Morgan with these two counts, as noted in his charges, was that he had "provided false or misleading information" and that "[t]he student referred to in this statement [felt] degraded, humiliated, and angry. The student referred to [feared] his reputation and future may be injured by this statement."
Morgan and many others were shocked that his statement could warrant such charges. In spite of the charges, Morgan remained firm in his belief in the veracity of his statement, as he told The North Wind:
Morgan said the letter to the editor was factual and doesn't constitute a violation of the Student Code. In winter semester, Foster missed one ASNMU board meeting on February 22 and two "Let's Chat" sessions, which Morgan said would mean that Foster would have been eligible for impeachment.
"To clarify, (Foster) could have been impeached, but I wouldn't have spent my time trying to impeach somebody for missing meetings," Morgan said.
Foster obviously did not agree with Morgan's interpretation, and FIRE for its part will not take one person's word over another here. Foster stated to The North Wind that "I think it's important for somebody to stand up for themselves and to not let false statements go uncontested." The integrity of such a statement is unimpeachable; indeed, it is the "marketplace of ideas" at work. Reporting your opponent to the authorities, however, is not.
Still, it is NMU that must truly be called to task here. FIRE could write a five-act opera on why universities cannot punish students for such things as "deliberately degrad[ing] a member of the University community." Such charges make a mockery of the First Amendment and intolerably chill speech across the campus. And yet, NMU planned to hold a hearing to force Morgan to answer these unconstitutional charges.
In the end, it didn't get that far; Morgan and Foster, with the coordination of the Dean of Students office, crafted and published a follow-up letter in The North Wind, stating that "At times ... we disagree, but we would like to make it known that disagreeing should not lead to disrespect. We both agree that looking forward is far more important than dwelling on the past." In return, the grievance and charges were dropped. Missing from the joint letter was the fact that, had Morgan not agreed to the statement, and had Foster not endorsed Morgan's apology, NMU would have proceeded full-speed ahead with Morgan's hearing, for which a group of Morgan's supporters had mobilized and planned to protest.
A final note: If NMU's "personal abuse" charge against Morgan rings familiar to Torch readers, it's because you've indeed heard it before. In 2006, a student at the University of Central Florida (UCF) received the same charge from the university for creating a Facebook page opposing the candidacy of a student running for UCF's student government, titled "Victor Perez is a Jerk and a Fool." Here's what FIRE wrote to UCF President John C. Hitt in response:
As the Supreme Court noted in Terminiello v. Chicago, 337 U.S. 1 (1949), "freedom of speech, though not absolute...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.... There is no room under our Constitution for a more restrictive view." (Internal citations omitted.) And indeed, the Supreme Court has held that the constitution protects many kinds of expression much more offensive than [student Matthew] Walston's. For example, in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Court determined that a student newspaper article entitled "Motherfucker Acquitted" was constitutionally protected speech, and in Hustler v. Falwell, 485 U.S. 46 (1988), the Court ruled that the First Amendment protected a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. In Texas v. Johnson, 491 U.S. 397 (1989), the Court explained the rationale behind these decisions well, saying that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Under these standards, there can be no question that calling someone a "jerk and a fool" is protected by the First Amendment.
Northern Michigan University may well be hearing this message from FIRE soon. If it thinks it is out of the woods just because it dropped its charges against Morgan and his constitutionally protected speech, it has another thing coming.
Permalink | E-mail comments | Posted by Peter Bonilla on April 16, 2010, at 4:03 PM
FIRE Chairman Harvey Silverglate in the 'Wall Street Journal'
April 16, 2010
FIRE Co-founder and Chairman Harvey Silverglate has written an editorial in today's Wall Street Journal tackling the First Amendment issues at stake in the U.S. Supreme Court case of Christian Legal Society v. Martinez, which goes before the high court on Monday. Harvey asks: "Can a public university force a Christian student group to accept as leaders students who explicitly reject core tenets of the group's faith? On Monday the Supreme Court will entertain precisely this question—and the First Amendment right to freedom of association hangs in the balance." In February, Harvey submitted the amici brief that FIRE and national student group Students for Liberty filed with the Supreme Court in the case on behalf of the Christian Legal Society.
Permalink | E-mail comments | Posted by Robert Shibley on April 16, 2010, at 10:18 AM
Following President's Statement, Cornell's Religious Student Groups Should Brace for Disparate Treatment
April 15, 2010
Last week, I discussed Cornell University President David J. Skorton's response to Student Assembly Resolution 44, which proposes to revise Cornell's non-discrimination policy to restrict the ability of student groups to require that their voting members and leaders actually share the group's core beliefs. The resolution, which passed the Student Assembly by a narrow vote back in February, requires Skorton's approval before final adoption. However, as he did when presented with a similar resolution in 2009 (after being pressed by FIRE), Skorton declined to assent to the resolution without requesting changes and commenting further. Now that a few days have passed and FIRE has had time to fully examine Skorton's thorough response to the Student Assembly, available in full here, it's worth contemplating what the practical effects of Skorton's response will likely be on campus.
Examined more closely, Skorton's response is a classic instance of Solomonic compromise. Unfortunately, the rights of religious student groups will likely be threatened again in the future as a result.
On the one hand, Skorton rejects Resolution 44's expansion of classes of individuals protected by the school's non-discrimination policy as unnecessary. The resolution would ban student groups from considering "actual or perceived age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, height, immigration or citizenship status, marital status, national origin, race, religion, religious practice, sexual orientation, socioeconomic status, veteran status or weight" when "determining full rights of membership, which shall include, but is not limited to, voting for, seeking, and holding positions within the [independent organization]." (The boldface material represents proposed additions to current policy.)
Skorton writes:
Fair enough; Skorton is essentially asking the Student Assembly to adhere to the categories of protected classes already established by the law. This is a reasonable request—barring real evidence of instances of invidious discrimination against members of these protected classes on the basis of such membership, why allow the Student Assembly to fashion new protected classes out of whole cloth? Members of the Student Assembly who voted in favor of Resolution 44 would presumably argue that the Chi Alpha Christian Fellowship's 2009 decision to remove a student leader from his leadership position after the student decided he no longer shared Chi Alpha's understanding of homosexuality is sufficient evidence that these new classes are necessary. But as I've explained at length before, Chi Alpha's requirement that its student leaders actually share the group's beliefs isn't discrimination; rather, it's entirely reasonable and completely in line with the First Amendment's longstanding protection of freedom of expressive association.Cornell's current policy dealing with non-discrimination is broad and effective: it bans all forms of legally prohibited discrimination in all University educational programs and activities and employment. This non-discrimination policy was adopted by the highest body of the University, the Cornell Board of Trustees, and has university-wide application in all policy related documents and agreements. The current policy prominently appears in university catalogues, brochures, handbooks, other policy documents, contracts and agreements. And several university offices make it their business to enforce the policy including the Offices of Workforce Diversity and Inclusion, University Counsel, Human Resources, and Student and Academic Services.
Since the Trustees-approved policy already encompasses all categories of "legally prohibited" discrimination, it is not clear to me (and presumably would not be clear to the Board) why the SA wishes to add several other categories of non-discrimination. The University is not empowered to formulate public policy; and should not add prohibitions that exceed those adopted by authorized federal, state, and local bodies.
The SA's proposal to expand the categories of non-discrimination in the IO agreement — by adding "height," "ancestry," "immigration status," "religious practice," "socioeconomic status," and "weight" — extends well beyond the Trustees-approved policy.* So, I do not accept this aspect of the SA resolution, and consequently I ask the SA to reconsider it.
What's more, this aspect of Skorton's response illustrates his understanding of Cornell's relationship with the law generally and constitutional jurisprudence more specifically, and merits a closer look. Skorton first argues that Cornell is an entirely private university, not bound by judicial interpretations of the First Amendment:
It is important, however, to understand that "constitutional" considerations do not control how the policy issues raised by the SA proposal should be resolved. As Cornell University Counsel James Mingle advises, the U.S. Constitution constrains governments (at the federal, state, and local levels) regarding certain governmental actions that affect individuals and entities. Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations.By preemptively declaring Cornell to be an entirely private university, Skorton is conveniently ignoring the fact that Cornell contains both public and private colleges in a unique arrangement. As I pointed out in FIRE's most recent letter to Skorton, sent last month, this hybrid status means that Cornell should be bound by the Supreme Court's rulings regarding student rights on campus:
Given Cornell's unique hybrid status as a part-private, part-public institution, FIRE strongly believes that these rulings and others by the Court, which make clear the essentiality of robust First Amendment protections on college and university campuses, apply in full at Cornell. As you know, though many of the colleges at Cornell are considered to be private, at least four colleges are "statutory colleges" under New York state law and receive funding from the state of New York. Moreover, a number of public officials, including the Governor of the State of New York, serve as ex officio members of Cornell's Board of Trustees. Cornell has a significant public aspect to its governance. Indeed, Cornell has been classified as a state agency for the purposes of certain state regulations.Skorton rejects this argument out of hand. That's predictable, if disappointing (and, I think, incorrect), because an acknowledgment by Skorton that Cornell is at least in part a public university and thus should be treated as other public universities would have meant that the school would be sacrificing the significant autonomy and independence it has carved out for itself. While part-public, Cornell is also part-private, and it is of course that latter half that the school wishes to emphasize. Again, fair enough; we'll leave this fight for another day.
But what's most interesting is what comes next, because while Skorton insists that Cornell is free to do as it pleases when it comes to constitutional law, he acknowledges that his university—like most private universities—relies on judicial understandings of legal concepts and rights to inform its own practices. Skorton writes:
Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations. However, many private universities, including Cornell, typically have chosen to do so as a matter of policy.This reliance is part of the reason why FIRE rates the speech policies of private universities that make explicit promises of free expression to their students in our Spotlight database of speech codes. Skorton doesn't explicitly acknowledge as much, but it's safe to assume that a significant part of the reason Cornell and other private universities "typically look to clearly established constitutional law (as developed by the courts) for guidance" is because having been promised freedom of expression, students and professors at private schools expect that they'll enjoy the same rights as their counterparts at public universities. This is certainly a reasonable expectation, as more than anything else in our society, constitutional jurisprudence shapes normative understandings of what precisely we mean when we talk about "rights." So if a private university broadly promises students freedom of expression, it's reasonable for that student to assume that he or she will enjoy those rights as defined by courts and commonly understood by American citizens.When considering the basis and boundaries of such rights, private universities typically look to clearly established constitutional law (as developed by the courts) for guidance. And when determining how such constitutionally recognized rights as freedoms of speech, press, association, and religion should inform and/or be incorporated into university policy documents, private universities (including Cornell) are cognizant, as they should be, of their own First Amendment right as a private university of academic autonomy to determine appropriate educational policy.
Skorton then proceeds to address the crux of the resolution: its attempt to prevent groups like Chi Alpha from requiring voting members and leaders to share the group's worldview. After claiming that there's a tension between Cornell's "non-discrimination provision regarding sexual orientation on the one hand, and the leadership practices of some student religious organizations which proclaim that homosexual conduct is inimical to the group's genuinely held religious beliefs," Skorton recognizes that "First Amendment principles protect even offensive speech and, within certain limits, recognize the right of private associations to tailor their membership and leadership practices." But this doesn't end the matter for him, as it should. Instead, using the wriggle room he's granted himself by deeming Cornell an exclusively private institution, and thus not bound by the First Amendment, Skorton proceeds to halve the proverbial baby:
In other words, Skorton is suggesting to the Student Assembly that religious student groups—even though they have a "legally recognized prerogative" to engage in what Skorton disappointingly frames as "religious discrimination"—should nevertheless be rendered second-class citizens and stripped of funding if they don't conform to the Student Assembly's impossibly cramped understanding of freedom of association and its impossibly broad definition of "discrimination."Consequently, my judgment is that the following approach is most appropriate for Cornell regarding membership and leadership practices of independent organizations: (1) The current policy embodied in the IO agreement should be retained: student organizations, without exception, are required to comply with the university's non-discrimination policy in all respects when determining their membership. (2) In its leadership practices, religious organizations may continue to limit officer posts to those members who conform to centrally and genuinely held religious beliefs of the organization; thus, the group's legally recognized prerogative to engage in "religious discrimination" in this limited regard is permitted to take precedence over the policy against sexual orientation discrimination.
With respect to entitlement for funding, however, I believe it would be appropriate for the SA, in the exercise of its delegated authority to administer and allocate SAF funds, to consider imposing more rigorous standards for all student organizations. The SA may determine following further deliberation to condition qualification for SAF subsidies on compliance with the non-discrimination policy without exception (i.e. regarding both membership and leadership practices). Thus, student religious organizations that choose not to comply with the sexual orientation provision would not be eligible for SAF funding, but would nevertheless continue to have access to university space and services as a recognized IO. This issue deserves further thoughtful review by the SA.
Like the halved baby, this compromise would please neither stakeholder. The Student Assembly would be forced to recognize that it cannot entirely bulldoze the freedom of association religious student groups should reasonably expect to enjoy at a school that promises its students freedom of expression. But religious student groups would still find themselves pretty well flattened, denied both funding and the basic recognition that they aren't engaged in the kind of invidious discrimination that non-discrimination policies are supposed to prevent. (By the Student Assembly's expansive definition of "discrimination," I suppose high school seniors denied admission at Cornell could accuse the school's admissions office of discrimination, too.) Because Skorton's letter is intended to provide guidance to next year's Student Assembly, if and when it takes up this issue again, religious student groups on campus have reason to worry.
As a final note, it's worth noting that Skorton acknowledges that the Supreme Court's forthcoming decision in Christian Legal Society v. Martinez (a case for which FIRE submitted an amici brief) may have some bearing on the Student Assembly's course of action. He concludes his letter by writing:
We note that the U.S. Supreme Court is considering a case (during the current spring 2010 term) involving a public university's imposition of sexual orientation non-discrimination policy that a student religious organization claims conflicts with its free association rights to choose its own leaders and select its voting members. Although as a unit under the aegis of a private university the SA is not legally obligated to follow constitutional law court decisions, the Supreme Court's airing of the competing policy interests—and judgment as to which should prevail—may help inform the SA's discussion as it reconsiders the elements of its resolution.This is again a useful and welcome recognition of the fact that private universities look to the high court for guidance in determining the contours of their own promises of free expression to students. However, and perhaps this is overly cynical of me, I can't help but feel as though Skorton has set up a "tails I win, heads you lose" situation here for religious student groups. Because while he grants that the decision "may help inform the SA's discussion as it reconsiders the elements of its resolution," he nevertheless makes sure to argue once more that Cornell won't be bound by the decision if they don't like the way it comes out ("as a unit under the aegis of a private university the SA is not legally obligated to follow constitutional law court decisions").
Religious student groups—and those students who support the fundamental freedom of expressive association—should begin to prepare for the coming debate on Cornell's campus next fall. President Skorton's letter leaves troubling questions unanswered about the university's support for freedom of association.
Permalink | E-mail comments | Posted by William Creeley on April 15, 2010, at 4:51 PM
FIRE's Case at Duke Gets National Attention in 'Boston Globe,' 'Washington Times,' 'The Atlantic'
April 15, 2010
FIRE's exposé of Duke University's unjust sexual misconduct policy—a policy that transmogrifies students into unwitting rapists—is drawing the attention of some of America's best-known publications. In The Boston Globe, Cathy Young brings analysis and an original perspective to Duke's policy, while FIRE Vice President Robert Shibley has a column of his own in today's Washington Times. Meanwhile, The Atlantic's Wendy Kaminer, a member of FIRE's Board of Advisors, tackles the policy's defective procedures and the political assumptions underlying the policy. Duke, meanwhile, has remained silent, making it increasingly obvious that it cannot defend this outrageously unfair policy.
Permalink | E-mail comments | Posted by Erin Osovets on April 15, 2010, at 11:25 AM
In Pages of 'Washington Times,' FIRE's Robert Shibley Takes Apart Duke's Outrageous Sexual Misconduct Policy
April 15, 2010
Much ink has been rightly spilled in recent days over Duke University's new sexual misconduct policy. Indeed, as FIRE and others have documented, the policy blurs the idea of consent in any sexual encounter, deprives students accused of sexual misconduct of basic due process, and threatens to turn many students on Duke's campus into unknowing rapists. In other words, the policy would be laughably absurd in its affront to common sense, if not for the fact that it is so dangerous and the possible consequences so dire.
Adding to the calls for Duke to dismantle its ill-advised policy is FIRE Vice President Robert Shibley's editorial in The Washington Times today. In the editorial, Robert rightfully takes Duke to task for implementing what he calls an "Orwellian nightmare":
After outlining these and other problems with the policy, Robert adds:At Duke, you can be a rapist without even knowing it. A new sexual-misconduct policy, enacted in the fall, takes as one of its fundamental tenets that "real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." That's right: To be guilty of date rape at Duke, you don't have to force someone to have sex or even have actual power over that person - you only have to be "perceived" as more powerful by a Duke tribunal.
Not concerned yet? How about this: If either party, male or female, is to any degree intoxicated during sexual activity, he or she can't consent to sex. If you are a student and your partner (or even your spouse) is tipsy, Duke says you have committed sexual misconduct.
Unfortunately, Robert is as right about that last point as about the others. Finally, Robert notes that the problems manifested in Duke's policy, even worse, can be generalized to America's colleges and universities:If not for the court of public opinion, the Duke men's lacrosse players who were falsely accused of rape might be in jail today. Now, for those accused by Duke, even that option is unavailable because any information shared during a hearing can never be revealed. Were you cleared? Were you falsely accused? Don't tell anyone, or Duke will punish you for violating confidentiality.
FIRE gave Duke more than a month to respond to our letter and defend or rescind these rules. Duke has done neither. We got only a one-page response saying that Duke would think about clearing up some additional ambiguities FIRE pointed out and that Duke would consider our concerns. In the meantime, how many Duke students have been falsely convicted of date rape? We hope the answer is zero, but there's no way to know - Duke has made sure of that.
That's chilling indeed.Duke suffered the most public lesson in recent memory of what can happen when rape allegations are not investigated carefully and fairly. One would think this would serve as a lesson not only for Duke, but for all colleges. Yet colleges continue to sacrifice the needs of justice to meet the demands of those for whom college is a chance not to educate but to indoctrinate students. A huge administrative class, desperate to justify its size by regulating every corner of students' lives, has reached into the most intimate of relations to change the very nature of how students perceive dating, sex and relationships.
Our thanks to The Washington Times for giving this matter the space it deserves. Robert's editorial will hopefully bring further scrutiny upon Duke's missteps, adding to a litany of voices that includes Wendy Kaminer in The Atlantic and Cathy Young in The Boston Globe. Hopefully, Duke will realize sooner rather than later that it does no good to fight against basic legal principles, common sense, and fundamental fairness, and that it needs to scrap its poorly written policy.
Permalink | E-mail comments | Posted by Azhar Majeed on April 15, 2010, at 11:22 AM
Temple Student Group Placed on Probation for Inviting Me to Speak?
April 14, 2010
A Temple University student group was notified this morning that it was on probation because of me. Apparently Temple just decided I am either so dangerous or so important that I need security for a lecture on campus tonight (I promise I am neither), but since the group sponsoring me did not request security, it is on probation effective immediately.
Never mind that I've given perhaps hundreds of lectures and never needed security except once—when I was on a panel at NYU about the Danish Mohammed cartoons (and frankly, it was the other panelists who needed protection). Never mind that my speech is pretty much just a longer version of the argument I made that I introduced on The Huffington Post, inciting no real controversy. Never mind that I've given a very similar lecture on "unlearning liberty" at Stanford and Berkeley to very receptive, calm, and engaged crowds. Given that the speech itself is about how students learn bad lessons about free speech from the bad examples of bureaucrats who over-regulate and too often punish speech they dislike, the irony here passes over into the realm of the surreal.
The administration is arguing that because Temple University Purpose (TUP) checked a box on a form stating that I'm a "VIP," but did not also make arrangements for security, this is some kind of serious policy violation that deserves probation. And Temple only noticed this today, despite the fact it knew about this event since at least February 15th. Another such infraction and the group could lose privileges to host future events, including tomorrow's event, when Amir Abbas Fakhravar, president of the Confederation of Iranian Students, and Saghar Kasraie, lecture on the Iranian Green Movement.
The TUP leadership has had a lot of trouble finding the actual policy that it supposedly violated. So have we. Since I don't need security, there was no reason to request it, and the whole matter could have been resolved in an e-mail or phone call rather than the jump to probation (without a hearing or charges, I might add).
What this is really about is not me, but Temple's unhappiness with TUP bringing other controversial people to campus, particularly Dutch politician Geert Wilders. Temple has continued its arbitrary handling of such events, as we have pointed out as recently as Monday:
Temple unconstitutionally charged the group for extra security after the [Wilders] event, but after FIRE intervened, Temple claimed that it could have charged the group thousands of dollars more. Temple arbitrarily offered to withdraw the extra fee, then unilaterally withdrew it. In its latest letter, Temple merely states that the matter is closed and makes no promise to ensure that controversial but protected speech is not silenced on campus. These actions chill speech at Temple because groups will not want to risk being charged thousands of dollars in fees for similar events.
At any rate, TUP has asked that this crazy probation be lifted. TUP wrote to the administrators in charge today noting that after TUP notified Student Activities about tomorrow's event with the Confederation of Iranian Students, "there was no notification from anyone in student activities informing me that there needed to be a planning meeting. What would have happened had I not taken the initiative to request [one]?" It seems that the most irresponsible and inconsistent people in this mess are Temple administrators.
And now, with Temple's treatment of my event, Jason Levy, Temple's Director of Student Center Operations, has chilled expression even further. I am willing to bet that no other group has been subject to such a strict interpretation of speaker requirements (assuming that these requirements even exist) and has been treated as poorly as TUP, but what student group would want to speak up and risk such pitifully bad treatment?
Or maybe it is me? FIRE put together a broad coalition including the the ACLU of Pennsylvania, Christian Legal Society, Feminists for Free Expression, Student Press Law Center, and David Horowitz's Students for Academic Freedom to help defeat Temple's speech code back in 2008. Maybe that is why they think I am bigger deal than I am. Maybe they just don't like me. Either way, a huge loss in an appeals court on free speech issues should have been a warning to stop these kinds of shenanigans. Temple administrators, please drop the probation against TUP now, and feel free to come to my speech tonight, too, if you like. You might learn something.
Permalink | E-mail comments | Posted by Greg Lukianoff on April 14, 2010, at 4:15 PM
Greg in 'Huffington Post' on Southwestern College's Muzzle Award
April 14, 2010
Yesterday, FIRE President Greg Lukianoff posted his "congratulations" to Southwestern College in The Huffington Post, since the college's achievements in censorship have earned it a 2010 Jefferson Muzzle Award.
Though Greg thinks Yale and Bucknell may have been equally worthy candidates, Southwestern College not only banned three professors from campus after their participation in a peaceful protest, but also continues to keep speech restricted to a small "Free Speech Patio." As Greg writes:
Yale, Bucknell, and Southwestern College all need to get back to the fundamentals: our colleges and universities are supposed to be the centers of innovation, debate, and discussion for our entire society. As such, they not only have to tolerate speech that might offend; they need to, in fact, encourage all speech, especially that which provokes and generates debate and dialogue. Forgetting this role undermines the very purpose of our colleges and universities and makes it more difficult to have the serious discussions our society desperately needs.
I hope 2010 is a better year for free speech on campus, but in the meantime, enjoy your Muzzle award, President Chopra and Southwestern College. You really did earn it!You can read Greg's full article here.
Permalink | E-mail comments | Posted by Claire Jenkins on April 14, 2010, at 2:47 PM
To Be or Not to Be...Politically Correct: Greg Lukianoff Speaking Tonight at Temple University on "Unlearning Liberty"
April 14, 2010
Tonight, Temple University student group Temple University Purpose will host FIRE President Greg Lukianoff for a lecture discussing how students are "Unlearning Liberty" when they witness administrators censoring their fellow students. From these acts of censorship, students learn that they should follow administrators' example to seek punishment for protected expression. Greg's "Unlearning Liberty" series has been presented at universities across the country and is the subject of his forthcoming book. The speech is especially pertinent as Temple recently charged Temple University Purpose an unconstitutional security fee for hosting controversial speaker Geert Wilders and has refused to clarify publicly that unpopular speech will not be silenced or burdened in the future.
The lecture will take place in Temple University's Student Center Room 200C, at 1755 North 13th Street in Philadelphia, PA at 7:30 p.m. A Q&A session will follow. For more information, please visit the event's Facebook page.
Permalink | E-mail comments | Posted by Erin Osovets on April 14, 2010, at 11:58 AM
Cathy Young in 'The Boston Globe' on Duke's Unjust Sexual Misconduct Policy
April 14, 2010
Columnist and Reason contributing editor Cathy Young pens an excellent editorial in The Boston Globe today about Duke University's shockingly unjust and intrusive sexual misconduct policy. The entire column is well worth a read, as Young details the many infirmities of Duke's policy. Young also brings a fresh perspective to the table:
About 15 years ago, as an undergraduate, a friend of mine was talked into a one-night stand in a situation some would call coercive: the man was a graduate student, and she felt somewhat intimidated by his intellectual brilliance. She went to a campus counselor hoping for advice on developing her assertiveness skills—only to be told that she had been assaulted and should not blame herself. My friend was frustrated and angry: in her view, the counselor was not only being unhelpful but telling her how to interpret her own experience. Imagine how much more betrayed she would have felt if the counselor had been compelled to initiate proceedings on her behalf.Young provides a concrete example of what can happen when universities decide it is their job to tell students what to think, even about the most intimate details of their lives, rather than to offer them support and encourage them to think and decide for themselves.
Duke has so far maintained silence in the face of substantive challenges to its policy. It's increasingly hard to avoid the conclusion that that is because Duke cannot publicly defend what it has chosen to impose on its students.
Permalink | E-mail comments | Posted by Robert Shibley on April 14, 2010, at 11:56 AM
Wendy Kaminer Pillories Duke's Sexual Misconduct Policy in 'The Atlantic'
April 13, 2010
Celibacy is probably not a feasible option for most undergraduates, but students at Duke University may want to consider it anyway.Such is the assessment of author, lawyer, and FIRE Board of Advisors member Wendy Kaminer in her most recent blog entry for The Atlantic. Kaminer is ridiculing Duke University's troubling sexual misconduct policy, and she's issued one of the best critiques of the policy to appear in the days since FIRE went public with its concerns at Duke.
As FIRE has done at length, Kaminer also draws attention to the many inequities in Duke's policy which stack the deck against those accused of sexual offenses, calling it "especially shameful, given the university's complicity in the wrongful and malicious 2006 indictment of three lacrosse players (and public vilification of the team) for a rape that never occurred."
In addition to her blunt and damning legal assessment of the policy, Kaminer has harsh words for the intellectual perfect storm that, as she sees it, "engendered the repressive speech and harassment codes that flourish on so many campuses today." (For more on her scholarly criticisms of this figment of the academy, read her keynote address from last year's Campus Freedom Network conference.)
Still, her sharpest words are for Duke University:
The Foundation for Individual Rights in Education (FIRE) is challenging Duke's policy (you can find the policy and FIRE's critique of it here). But I suspect that university administrators will only respond to complaints by alumni and other donors. Duke seems unrepentant about collaborating in the persecution of its lacrosse players and apparently takes pride in its sexual misconduct policy. It's supposed to reflect university values — "honesty, fairness, respect, and accountability" — in the interests of promoting "healthy interpersonal relationships." The policy states that "Duke University is committed to providing an environment free of personal affronts against individuals... "
That is a dystopian goal, especially at a university. Intellectual debate cannot thrive, individual liberty cannot survive, and "healthy sexual relationships" cannot develop in a university that seeks to eradicate "personal affronts." Besides, I doubt Duke's commitment to protecting all members of its community from "affronts." I bet there are students, faculty members, and alums who are deeply affronted by the sexual misconduct policy. I hope all of them protest it vigorously and some vote against it with their pocketbooks; or, resisting the lessons of its own recent history, Duke may continue to take pride in repeating it.As Robert noted earlier, Duke has largely failed to respond to FIRE's myriad concerns about the policy, essentially saying, "don't call us, we'll call you." Yet, as Kaminer hopes in her article, several Duke alumni have told us that they have voted against the policy "with their pocketbooks." Duke alumni and other concerned citizens can write their own letters to Brodhead here.
Thanks to Wendy Kaminer for another incisive article on student rights.
Permalink | E-mail comments | Posted by Peter Bonilla on April 13, 2010, at 4:59 PM
Between Tarleton State and Gallaudet, Where Will Students' Ideas Receive a Fair Shake?
April 13, 2010
As we have discussed here on The Torch, two universities have recently faced controversy over students' attempts to stage productions of Terrence McNally's play Corpus Christi on campus. Student productions of the play, which "modernizes" the story of Jesus Christ and his apostles and depicts the Christ-like protagonist as a gay man, met with far different results at these two schools. Which school is more likely to promote a true marketplace of ideas?
At Tarleton State University in Texas, a drama professor canceled a production of the play that had been planned by a student for an advanced directing class. The professor based his decision to cancel the production (as well as performances of three other plays scheduled to take place on the same day) on threats the university received from offended and outraged members of the community, though in the days following the cancellation doubt was raised about whether the threats were serious enough to have warranted cancellation. Conversely, Gallaudet University in Washington, D.C., refused to give in to public opposition to a student-run production of the play, even in the face of a campaign by the same religious organization, the American Society for the Defense of Tradition, Family and Property, that had helped to rouse opposition to the play at Tarleton State. Instead, Gallaudet has admirably allowed the production to go on.
Just as striking as the differences in these results are the public statements issued by the two universities during the respective controversies. At Tarleton State, President F. Dominic Dottavio issued an open letter in which he recognized that "[t]he Supreme Court of the United States has consistently held that public universities may not engage in the sort of censorship that prohibiting this student's project would involve," and that students' First Amendment rights are "protected by law even if the speech is offensive to others." Of course, FIRE welcomed the fact that President Dottavio recognized that both he and his university were legally bound to uphold the First Amendment—which happens much less often at public colleges than one might think. However, President Dottavio also felt the need to give his personal views of the play at issue, and at some length at that:
As you might imagine, many people have shared with me quotes, excerpts and even video clips of the play. My personal reaction is that I see no artistic or redeeming quality in the work. I believe, as many have opined, that it is offensive, crude, and irreverent. It is my sense that there are significant numbers of faculty, staff and students at Tarleton who share my views of the play.While President Dottavio of course has a First Amendment right to express his personal opinion about Corpus Christi, it would have been preferable for him to tread more lightly. For him to declare that he sees "no artistic or redeeming quality" in the play, as though he were invoking the legal standard for obscenity, goes somewhat beyond merely expressing disagreement with the play's content; unfortunately, it borders on declaring the play to be outside the bounds of First Amendment protection. As the head of the institution, he should have realized that, fairly or not, his words carry considerable weight on campus and in the surrounding community and shape the views of others, some of whom may mistake his statement as speaking for the institution. Thus, his statement carries the potential of causing a chilling effect among Tarleton State students, certainly a result to be avoided.
[ ... ]
I am hopeful that people will judge us against our 111 year history of providing exceptional quality educational opportunities for students rather than against this one unfortunate event.
Contrast President Dottavio's statement with the one made by Gallaudet Provost Stephen Weiner regarding the controversy there:
Gallaudet University neither endorses nor condemns the views expressed in Corpus Christi, or any dramatic production. We understand that there are people who will find this play affirming, liberating, and cathartic, and others who find its message disrespectful, distasteful, and repugnant. We seek to allow all views to be aired openly and respectfully, and we hope that open discussions will allow individuals to listen to one another. This is the hallmark of an academic institution.So, not only was the end result at Gallaudet worthy of praise, but the school showed admirable restraint by not taking an official position on the moral value of the views expressed in the play, recognizing that different people have differed in their reasonable conclusions about the play. There was no declaration that the play's content had no artistic or redeeming value. Instead, Provost Weiner issued an exemplary statement regarding the value of the unfettered exchange of views on a college campus. Consequently, students at Gallaudet should feel comfortable expressing a wide range of views.
This is how the marketplace of ideas is supposed to work. If you're a student at Tarleton State or Gaulladet, it is worth asking yourself where you might feel more comfortable expressing your views, particularly if you happen to rest in the campus minority on a particular (and, say, contentious) issue. Where might you think the administration is least likely to come down on the "wrong" type of speech? If recent developments at these two schools are any indication, the answer should be apparent.
Permalink | E-mail comments | Posted by Azhar Majeed on April 13, 2010, at 2:23 PM
Southwestern College Receives Jefferson 'Muzzle' Award for Egregious Censorship
April 13, 2010
The Thomas Jefferson Center for the Protection of Free Expression has awarded a 2010 "Jefferson Muzzle"—a dubious distinction reserved for "egregious or ridiculous affronts to the First Amendment right of free speech"—to administrators at California's Southwestern College. The public college earned its Muzzle by "consistently refusing to heed and apply such clear principles of free expression in the governance of an institution of higher learning" in dealing with a peaceful student and faculty protest over budget cuts, going so far as to ban from campus faculty members participating in the protest. As Torch readers know well, FIRE has been extensively involved in defending the faculty members and advocating for the dismantling of Southwestern's unconstitutional "free speech zone."
The Thomas Jefferson Center's description of the indefensible conduct of Southwestern College administrators makes clear why the school's Muzzle award is so well-deserved:
In October 2009, a group of students at Southwestern College in Chula Vista, California, participated in a peaceful protest over college budget cuts. Initially, the protest took place on a covered patio in front of the cafeteria. Sensing that they were in a location unlikely to be noticed by members of the college's administration, the protestors left the patio and moved in the direction of the courtyard outside the offices of Southwestern President Raj. K. Chopra. At different points in this chain of events, three Southwestern faculty members joined the protest. Upon reaching the courtyard, the protestors were met by a group of police officers who would not let them proceed further. The students and three faculty members peacefully complied and shortly thereafter left the area.
The basis for the police officers' action was the protestors' violation of the college's policy limiting all such speech activities to the "free speech" patio where the protest began. (It is not clear whether the protestors had reserved the patio in advance of their protest-another Southwestern policy.) That evening a college human resource officer, accompanied by a police officer, hand-delivered letters to the three faculty members involved in the day's events informing them that they were banned from campus pending a criminal investigation. The campus ban of the three faculty members was lifted two weeks later and the criminal investigation was eventually dropped, but an official reprimand was placed in each of the faculty members' employee files.Southwestern College administrators appear intent on continuing the College's policy concerning campus protests. In February 2010, Nickolas Furr, who had set up a table outside the "free speech" patio to collect signatures calling for the recall of three members of the college's governing board who had voted to cut spring classes, was told he had to move his table to the patio. The college official who ordered Furr to move said he was acting on the order of a superior whom he declined to name. A similar incident occurred 6 days later when a group of students and faculty also sought signatures for removing the governing board members. Among the protestors was Southwestern Professor Robert Unger—a licensed attorney—who, when asked to move to the patio, politely refused insisting it was his right under federal and state law to protest outside of the patio so long as he was not disrupting college activities.
As the good folks at the Thomas Jefferson Center point out, public colleges and universities are of course entitled to impose reasonable regulations in order to ensure that the institution is able to operate, students are able to learn, and no one's safety is compromised. However, by engaging in outright censorship, Southwestern went far beyond what it is permitted to do:
Colleges and universities, along with other government entities and agencies that manage public property, may surely protect their educational activities, ensure equal access to scarce facilities, and impose content-neutral time, place and manner regulations designed to maintain safety and order. But when such rules become so restrictive as to stifle even the peaceful presentation and discussion of controversial viewpoints on public issues, free expression is inevitably at grave risk. "That danger," declared the U.S. Supreme Court, "is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." For consistently refusing to heed and apply such clear principles of free expression in the governance of an institution of higher learning, Southwestern College's administration clearly merits a 2010 Jefferson Muzzle.We couldn't agree more with the Thomas Jefferson Center's condemnation of Southwestern's illiberal actions.
It will likely come as no surprise to FIRE supporters that this is the third consecutive year and the fourth year of the last five that a school at the center of a FIRE case has been awarded a Jefferson Muzzle. After all, if you're looking for "egregious or ridiculous affronts to the First Amendment right of free speech," then all too often, our nation's colleges are a good place to start.
In 2006, New Jersey's William Paterson University garnered a Muzzle for slapping 63-year-old student-employee Jihad Daniel with an unfounded sexual harassment charge after he replied to an unsolicited mass e-mail with a private message expressing his religious views about homosexuality. In 2008—unfortunately, a banner year for censorship on campus—Hayden Barnes' expulsion from Valdosta State University and Brandeis University's punishment of Professor Donald Hindley earned each school a Muzzle. And last year, two Texas schools, Tarrant County College and Lone Star College, secured a shared Muzzle for censoring gun-related speech on campus. (Tarrant County College's "Muzzle" even made it into the complaint initiating the successful lawsuit brought against TCC, coordinated by FIRE and the ACLU of Texas.)
We thank the Center very much for its consistent recognition of the fact that some of the nation's most blatant censorship continues to occur where it is least acceptable: our institutions of higher education, and again we thank the Center for bringing further attention to the mess at Southwestern College. We continue to work with students, faculty, and other organizations to dismantle the school's free speech zone, and we'll likely have more news on that front very soon.
Permalink | E-mail comments | Posted by William Creeley on April 13, 2010, at 12:55 PM
Temple University Chills Expression in the Wake of Geert Wilders Event
April 12, 2010
Temple University's irreconcilable actions regarding a student group that brought Dutch politician Geert Wilders to campus have left students utterly in the dark about what Temple will do the next time a controversial speaker comes to campus. Temple unconstitutionally charged the group, Temple University Purpose, for extra security after the event, but after FIRE intervened, Temple claimed that it could have charged the group thousands of dollars more. Temple arbitrarily offered to withdraw the extra fee, then unilaterally withdrew it. In its latest letter, Temple merely states that the matter is closed and makes no promise to ensure that controversial but protected speech is not silenced on campus.
These actions chill speech at Temple because groups will not want to risk similarly strange treatment of their events. Who would bring another controversial speaker to campus, risking thousands of dollars of after-the-fact security fees? Charging an extra security fee because of a potentially hostile audience is unconstitutional because it burdens the speech, but many student groups will likely be unwilling to push their luck to vindicate their rights.
In our most recent letter to Temple, we point out not only that Temple's random actions have a chilling effect on campus expression, but also that Temple maintains a constitutionally unacceptable policy of burdening speech. We wrote on March 18:
Unfortunately, Temple doesn't seem to care about its policy or its actions. Temple's April 7 response merely stated:While we are pleased that Temple University has withdrawn the bill for this event, it is disappointing that Temple has failed to acknowledge the legal principle under which it was required to do so. In addition, Temple's actions to date—imposing a fee, offering to withdraw it, and then finally withdrawing it—have been without any explanation on which student organizations can rely when hosting controversial events in the future. Since Temple has not acknowledged its error, for example, in stating that it could have charged $6,000 to TUP for the extra security for the event, students have a reasonable fear of arbitrary imposition of such fees that is likely to have a persistent chilling effect on speech at Temple. Student organizations are likely to avoid bringing a controversial speaker to campus lest they face the vacillating treatment to which TUP was subjected, as well as the prospect of thousands of dollars in extra security fees.
Again, the Supreme Court in Forsyth County v. Nationalist Movement, 505 U.S. 123, 132-33 (1992) found that the implementation of the county's ordinance showed no "narrowly drawn, reasonable and definite standards guiding the hand of the Forsyth County administrator" in assessing fees (citation omitted) (internal quotation marks omitted) and that "[n]othing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees" (emphasis added).
In addition, your response directed FIRE to the Web page regarding Temple's "guidelines regarding student run programs," available at http://www.temple.edu/studentaffairs/studentactivities/studentorgs/blackbook-programming.asp. [...] [U]nder "Security for Events," while the policy does appear to employ a variety of reasonable and definite standards, it does not clarify who is responsible to pay for any added security, leaving students further in the dark about their financial responsibilities under Temple's policy.
In particular, one of the criteria for determining security needs at Temple includes "Increased risks (e.g., threats received)," a criterion that Temple may not use when charging security fees to students. This criterion is not content neutral, and it is exactly what was contemplated by the Supreme Court in Forsyth, as FIRE pointed out in our first letter to President Ann Weaver Hart on January 4, 2010.
Temple must clarify that it will not financially burden the speech of student organizations, or their invited guests, because of "threats received" or other potentially hostile actions by protesters or audience members. In addition, we request that Temple refrain from arbitrarily assessing or waiving security fees in the future. All registered student organizations at Temple deserve equal treatment from Temple regardless of viewpoint, especially regarding matters of their First Amendment rights.
We appreciate your concern for student rights and for alerting us to FIRE's position on the matter. We have withdrawn the fee and now consider the matter closed.Apparently Temple thinks it is appropriate to assess a fee unconstitutionally and then withdraw it unilaterally without any acknowledgment of its constitutional obligation not to burden speech in this way. Temple should know better. In fact, the free speech principle here is so clearly established that Temple administrators risk losing qualified immunity in lawsuits if they try such shenanigans again. That means that the administrators could be liable for damages as individuals and not just in their professional capacities as administrators. In the meantime, let us hope that student organizations will be brave enough to fully exercise their rights on campus in spite of Temple's missteps.
Permalink | E-mail comments | Posted by Adam Kissel on April 12, 2010, at 3:58 PM
University of Virginia Student Calls for UVA to Become 'Green Light' School
April 12, 2010
Last week, University of Virginia (UVA) student Megan Stiles published an excellent column in The Cavalier Daily, UVA's student paper, calling on incoming UVA president Teresa Sullivan to "reevaluate current University speech codes to obtain the green light rating from the Foundation for Individual Rights in Education."
Stiles opens her column describing Adam's speech at UVA last week and explaining UVA's red-light rating. She then discusses the policies that FIRE objects to:
The policies in question deal mainly with the University's definition of sexual harassment. The University's policy is very broad and includes certain speech, which may be distasteful and inappropriate, but it is nevertheless still protected speech. This includes "jokes of a sexual nature," "gestures of a sexual nature" and "sexually suggestive e-mails." Although these types of expression may be vulgar and distasteful, in most situations they are still forms of protected speech.She also notes UVA's obligation to uphold the First Amendment because UVA is a public university, and she discusses the legal risks of ignoring that obligation. Then Stiles launches into an excellent exposition of the social and educational value of freedom of speech, which is worth quoting in full:
Freedom of speech is one of the most cherished freedoms of our country. It can be unpopular, however, because it protects both popular and unpopular viewpoints. If only the majority had a right to be heard, then fewer people would be able to speak out against the government or politicians. Today, there are still countries where you can be prosecuted for engaging in uncensored expression. With the right to free speech comes the inevitable consequence that some speech will offend others. When you are offended by someone's speech, you are afforded the right to counter that speech. This free exchange of ideas is what makes America great and protecting the right to freedom of speech should be the University's top priority. Freedom of speech, after all, is the cornerstone of an education. We are all here to learn and that includes the inclusion of many different opinions that may challenge our own. This is part of learning and should be embraced.Stiles recalls FIRE's 2008 defense of the Edmund Burke Society, then a nascent student group at UVA struggling to obtain recognition from the university because the group's constitution stated that it was for "conservative-minded students":
FIRE pointed out to [the Student] Council that its stance violated the student[s'] rights to freedom of association. If the University does not change some of its free speech policies, it will only be a matter of time before the University will come under fire and potentially be hit with a huge lawsuit.For these reasons, Stiles calls on her university to join The College of William & Mary as a green-light institution. William & Mary received that status after former FIRE intern and CFN member Braum Katz worked through the student government to persuade the university to change all of the school's problematic policies.
The University must change these policies and join William & Mary, which is currently the only university in Virginia — public or private — that has received FIRE's top status as a green light institution. Not only is the University bound by the First Amendment, but it also claims to promote free speech of its students and faculty, stating that "the University values and embraces the ideals of freedom of inquiry, freedom of thought, and freedom of expression." Sullivan should make it one of her priorities to change the University's policies so that those grandiose statements factually reflect the atmosphere of the University.Stiles closes by pointing out the incredible potential benefit to UVA's image if it abolishes its speech codes.
How nice would it be for the University to be able [to] tell new and prospective students that it has received a green light from an organization that fights for free speech on college campuses?An added benefit is that FIRE would sing the university's praises from the mountaintops, as we did for The College of William & Mary, telling prospective students that UVA is one of a handful of institutions of higher learning that has made it clear in its policies that it upholds the free speech rights of its students. We encourage President-Elect Sullivan to heed Stiles' suggestion.
Permalink | E-mail comments | Posted by Luke Sheahan on April 12, 2010, at 10:29 AM
Rights in the News: After Championship Win, Court of Public Opinion Less Kind to Duke
April 9, 2010
Duke may have gotten a little lucky on the basketball court against Butler Monday night. The court of public opinion, meanwhile? Not so much.
On the heels of FIRE's swift victory in Durham last week, when the Duke Women's Center apologized for having prevented a pro-life student group from using its space (to which The Morning Call gave a nod this week), Duke is in the spotlight again, this time for its unjust sexual misconduct policy. KC Johnson, Helen Smith, Joanne Jacobs, Pope Hat, and Protein Wisdom are among the many blogs hitting Duke on the policy; The Washington Examiner has gotten in on the act as well. Meanwhile, several dozen supporters have used our site to write Duke President Richard Brodhead and ask for fairness and common sense, and you can add your voice to the chorus here.
Coincidentally this week, FIRE has seen a high incidence of student papers taking aim at their colleges' speech codes. Azhar had his excellent letter in The Daily Eqyptian chastising Southern Illinois University's hugely unpopular sexual harassment policy, and we've also seen speech codes covered in The Shield at the University of Southern Indiana; The Cavalier Daily at the University of Virginia; and The Wesleyan Argus at Wesleyan University. Erica Perez, meanwhile, noted the demise of San Francisco State University's free speech zone at California Watch.
Final note: a number of our supporters writing to President Brodhead made a point of saying that they would withhold their alumni donations, as they darn well should. On that note, check out FIRE's "Give Half For Liberty" campaign, and find out how to make sure that your alma mater is respecting student rights.
Permalink | E-mail comments | Posted by Peter Bonilla on April 9, 2010, at 5:03 PM
Students Celebrate First Amendment Day at Iowa State University
April 9, 2010
Students at Iowa State University celebrated the university's eighth annual First Amendment Day yesterday, holding a day-long series of public events and panel discussions on the issues currently facing free speech.
First Amendment Day this year featured a keynote address on "Watchdog Journalism in the 21st Century," delivered by Pulitzer Prize-winning Chicago Tribune reporter Joe Mahr. The event also had an outdoor "Feast on the First Amendment," featuring live music and soapbox debates, some of which you can view via the event's Twitter page.
Congratulations to Iowa State for another successful First Amendment Day. Hopefully Iowa State's more deeply informed minds will put their new knowledge to use by working to get rid of Iowa State's speech codes.
Permalink | E-mail comments | Posted by Peter Bonilla on April 9, 2010, at 4:40 PM
Student Paper Highlights University of Southern Indiana's Speech Codes
April 9, 2010
In an article published yesterday in The Shield, the student newspaper at the University of Southern Indiana (USI), student Zach Evans highlights the unconstitutional speech policies in force at USI.
Evans opens with an examination of USI's free speech zone policy.
With that in mind, what does free speech mean at USI? It all begins in the area set aside for the sole purpose of the exercise of free speech.
Universities were at one point in time were (sic) the breeding ground for social activism and political protest.
During the 1960's and 70's the Vietnam War polarized young adults who organized en masse to oppose the war.
It was following this period of time, according to the ACLU, that schools began regulating the areas in which students could express their freedom of speech.
"There is a free speech area. It is located in the grass area / sidewalk immediately west of the bus stop between the Orr Building and the UC Building expansion," Director of Security Steve Woodall said "The free speech area can be utilized by both unsponsored and sponsored speakers."
There is a problem with USI current free speech zone: half of the location is currently occupied by construction equipment.
Another problem is that it's unconstitutional. FIRE rates the policy as a yellow light, meaning, as Evans writes, that "the policy could potentially be abused outside of its intended nature to restrict free speech." That's not to say the policy is not a serious threat to free expression. Evans' interview with student Justin Earle is telling in how insidious yellow-light policies can be: "I had no idea where the free speech zone is or that we even had one to be honest. Does that mean we can't have speak out anywhere else?" Possibly. Evans recounts that in a 2006 protest in opposition to former President George W. Bush, campus security kept students corralled in the free speech zone.
As Evans discusses, FIRE rates one of USI's policies as a red light, "rule 2.9 in the Student's Rights and Responsibilities on Sexual Harassment," which states:
Sexual harassment includes any interpersonal attention of a sexual nature that is unwanted and unwelcome. Examples may include, but are not limited to, the following: ... a pattern of conduct (not legitimately related to the subject matter of the course if a course is involved or to employment if employment is involved) that tends to bring discomfort and/or humiliation, which may include comments of a sexual nature, or sexually explicit jokes, statements, questions, or anecdotes; or a pattern of conduct that would tend to bring discomfort or humiliation to a reasonable person at whom the conduct was directed, which may include unnecessary touching, patting, hugging, or brushing against a person's body; remarks of a sexual nature regarding a person's clothing or body; or remarks about sexual activity or speculations about previous sexual experience.
Evans explains that per FIRE's ranking system, the policy earns a red light because of its vague language and the fact that it prohibits speech that would be protected in society at large. What's more, there are four yellow-light policies at USI, in addition to the free speech zone policy, that could be used to censor or chill student speech.
Evans closes his article by citing statistics from FIRE's latest speech code report, Spotlight on Speech Codes 2010, and discussing some other schools where free speech zones have been debated.
FIRE reports on 375 universities and colleges both private and public. Of those schools, FIRE has deemed 71 percent to have a clear and substantial violation of free speech in the school's policies.
According to FIRE, "A college campus-as the ultimate free speech zone-should be the last place where expression is regarded with suspicion."
The controversy over designated free speech zones has been discussed in many college campuses throughout the country, including New Mexico State University, University of South Florida and locally Indiana University.
In most instances, the universities either vacated their free speech zone policy or amended the language.
Thanks to Evans for this excellent discussion of USI's speech codes. We only add that FIRE has defeated free speech zones at a number of universities. As Azhar recounted yesterday, universities have folded under pressure from FIRE at Southwestern College in California, Valdosta State University, University of North Texas, and most recently at San Francisco State University, and from federal courts as part of FIRE's Speech Code Litigation Project at Texas Tech University, Tarrant County College, and Citrus College in Florida.
Permalink | E-mail comments | Posted by Luke Sheahan on April 9, 2010, at 11:25 AM
Duke and the Art of Not Answering Questions
April 9, 2010
Lawyers often specialize in the art of answering questions without actually answering questions.
Here's a great example: the letter we received today from Duke University lawyer Kate Hendricks. Hendricks was personally very pleasant to me when I had a non-substantive conversation with her on March 25, as I mentioned in my previous blog entry and to which she refers in her letter. But Hendricks' letter employs a common tactic: it addresses the least important concern we raised in our letter while conveniently ignoring everything else.
Here's the sole concern Duke addresses: FIRE pointed out in our letter that the sexual misconduct policy says that students in sexual misconduct hearings have all the same rights that they would in all other hearings, but then when it lists those rights, it leaves some of them out. FIRE wrote, "It is unclear whether this ambiguity is an oversight or if Duke intends to give students accused of sexual misconduct fewer rights than they have in other types of cases." FIRE then goes on to list the rights that seem to differ and concludes the section by asking, "Do these rights exist in sexual misconduct hearings or not? If they do exist in sexual misconduct hearings, why is that not made clear?"
In response to this, Hendricks writes, "While your letter is the first indication we have received that this point is ambiguous, we can certainly review to determine whether clarification is in order." OK, great. But how long does that take? Like Hendricks, I'm an attorney, too, and it was ambiguous to me—why wouldn't undergrads be similarly confused? Why can't Duke just say "whoops, we'll fix that"? It would require the titanic effort of copying and pasting from one webpage to another. That's it.
Anyway, as I said, that was the least important of our concerns.
By way of contrast, here is a short list of some of the far greater problems Duke ignored, presented in plain English:
1. If two students are merely "perceived" as differently "powerful," this policy says that the more "powerful" student may have unintentionally coerced the other into sex and therefore committed sexual misconduct.
2. If two students are drunk and have sex, according to this policy they both committed sexual misconduct against each other.3. What does "psychological pressure" to have sex mean, and on a student-to-student level, how does Duke distinguish this from peer pressure or even simple persuasion?
4. Since the victim and the accuser do not have to be the same person, and the accuser can be an anonymous third party, the accused cannot be guaranteed the right to face his or her accuser.
5. The accused has no right to representation by an attorney under the policy, so Duke can force him or her to incriminate himself or herself in ways that could compromise his or her defense in parallel criminal charges.
6. The composition of the hearing panel is weighted 3 to 2 in favor of students in ordinary misconduct hearings, but 2 to 1 in favor of faculty and staff (paid by Duke, of course) in sexual misconduct hearings.
7. All participants are required by the policy to keep "any information" about sexual misconduct proceedings confidential, apparently into perpetuity, which denies those found not responsible for sexual misconduct and those falsely accused from using the court of public opinion to clear their names (a right that was critical in the Duke lacrosse rape hoax case).
That list hits the highlights, at least. On these points, Duke's letter offers only a vague commitment to "give the points [FIRE] raise[s] due consideration" as it "continually evaluate[s] that delicate balance" between the rights of the complainant and the accused.
Sorry, Duke, but this "balance" is "delicate" only if you think an elephant and a mouse are delicately balanced. While Duke continues to "evaluate," for all we know multiple students are undergoing secret trials in which they are being evaluated for their "perceived power differentials" and found wanting. (If this is you, you probably should get legal advice very quickly.) Continuous evaluation simply is not going to cut it. Duke needs to rescind and reevaluate these aspects of its policy, and it needs to do so immediately.
Permalink | E-mail comments | Posted by Robert Shibley on April 9, 2010, at 9:39 AM
FIRE Welcomes Sweidy Stata Video Fellow Joe Stramowski
April 8, 2010
Back in January, FIRE announced the creation of a one-year video fellowship, funded in part by a generous $25,000 matching grant from Raymie Stata and Kimberly Sweidy. We are excited to announce that, after an intense search, Joe Stramowski has been selected for the position and started working at FIRE on April 1. Joe will be creating several high-quality documentary-style films about FIRE's cases and mission and will play a key role in FIRE's outreach and publicity efforts.
A 2005 graduate of Hofstra University, Joe has since worked as a journalist, cinematographer, editor, and writer for narrative, commercial, and documentary projects nationwide. These experiences have led him down many interesting roads leading to a wide gamut of destinations—ranging from PBS and MTV to the Katrina-battered streets of New Orleans. He has been a disciple of narrative story and the moving image for as long as he can remember and a proponent of free speech since the first time he heard the word "inappropriate."
He lives in Brooklyn, New York, and in his spare time writes and directs his own projects.
Permalink | E-mail comments | Posted by Erin Osovets on April 8, 2010, at 3:05 PM
FIRE's Free Speech Victory at Duke Highlighted in 'Morning Call'
April 8, 2010
The Morning Call (Allentown, PA) ran an op-ed last Saturday highlighting FIRE's successful work defending freedom of expression against censorship by the Women's Center at Duke University and in other cases. Charles D. Snelling writes:
It is refreshing to see Mr. Snelling rise beyond partisanship to support the rights of those with whom he disagrees. That's exactly the spirit of the First Amendment. Thanks to The Morning Call for once again bringing attention to FIRE's work.I belong to an organization called FIRE -- Foundation for Individual Rights in Education -- that is a vitally needed defender of free speech, which is under assault in many if not most colleges and universities.
Readers may remember the infamous order at Lehigh University after 9/11 that the American flag would not be displayed on the college's buses. [link added]
Nor is this sort of outrage a rarity. Just last week, the Duke University Women's Center canceled with virtually no notice an event scheduled by Duke Students for Life simply because the center didn't want this pro-life group to have freedom of expression.
FIRE raised a public stink and Duke backed up, telling the pro-life group that ''mistakes were certainly made that should not have occurred'' and that the Women's Center had ''taken steps to ensure that such an incident would not happen again.'' Now let's be clear on one thing: I am a woman's pro-choice advocate and my wife and I were some of the founders of Planned Parenthood of Eastern Pennsylvania. It makes no difference that I disagree with the viewpoint of the pro-life students. Their right to advocate their point of view should be beyond dispute, especially at a place like Duke.
FIRE has won scores of federal lawsuits [he should have said publicity campaigns; FIRE does not litigate, though we do coordinate lawsuits] against colleges and universities that have punished and sanctioned constitutionally protected free speech by both faculty and students.
Permalink | E-mail comments | Posted by Adam Kissel on April 8, 2010, at 2:46 PM
SIUC's Sexual Harassment Policy Badly Needs Revision
April 8, 2010
"The mistakes in Southern Illinois University Carbondale's sexual harassment policy," my colleague Azhar says in a letter published in yesterday's Daily Egyptian student newspaper, "are much worse than what could be attributed to minor oversight or simple misunderstanding."
Coming in the wake of deeply controversial prosecutions of two professors for sexual harassment—which led to lawsuits, a free speech crisis, administrative deceit, and possibly even the death of one of the faculty members due to the stress associated with SIUC's treatment of him—what could SIUC possibly be thinking? As Azhar writes:
In fact, SIUC's policy severely misapplies sexual harassment law, violating the First Amendment rights of students and faculty. Not only that, but its procedures for adjudicating sexual harassment accusations deny basic due process to those accused.
The university's policy impermissibly applies the legal standard for harassment in the workplace to all cases on campus, even though to most SIUC students, the university is not their employer. The workplace harassment standard has been repeatedly struck down by courts when applied in the university setting because that standard fails to adequately protect speech rights on campus.
[...]
SIUC's proposed procedures for sexual harassment complaints are equally indefensible. The procedures contain no specific requirements regarding a hearing or even notice to the accused about the nature of the charges and basis of the allegations. That's the basic due process that everyone deserves.
Instead, the draft procedures vest entirely too much discretion in the hands of the associate chancellor: discretion to decide whether the complaint warrants an investigation, who the investigators shall be and, ultimately, whether a violation has occurred. Additionally, upon appeal, the associate chancellor determines the composition of the five-person appellate panel.
Needless to say, allowing the person whose decision will be reviewed to have such authority over the reviewing body is unwise.
These shortcomings serve as a reminder that the sad cases of professors John Simon and Cal Meyers are still disturbingly recent. Without major changes, the same issues could be revisited in another case.
See also Jonathan Bean's information and links about this policy and the controversy it has generated on campus—although in my book, students and faculty and the unions who represent them ought to be doing a heck of a lot more to preserve individual rights on campus in this matter. As Azhar concludes:
I hope the Daily Egyptian keeps following the story. It is vitally important because it cuts against the heart of SIUC's role as a marketplace of ideas, where students and faculty members should feel free to speak about contentious issues without the fear of misguided sexual harassment charges and a process weighted against them.The university needs to do more than define sexual harassment in accordance with the case law. It must restore fundamental fairness and due process to its adjudicatory process for sexual harassment. SIUC must clearly delineate the rights of the accused, starting with the basic rights to notice and a hearing.
It must allow the accused a legitimate opportunity to contest the charges and to confront the accuser. And it must provide an impartial tribunal, rather than vest so much power in the hands of one individual.
Students and faculty at SIUC are most at risk under the current policy. I therefore urge them to speak out, raise awareness on campus and let their opinions be known to the administration. Those who have already engaged in these efforts should continue their activism. The entire campus will benefit from revisions that protect free speech and respect basic rights.
Permalink | E-mail comments | Posted by Adam Kissel on April 8, 2010, at 11:34 AM
Robert Shibley Appearing on 'The David Boze Show' Tonight
April 7, 2010
FIRE's Vice President Robert Shibley will be discussing our latest case at Duke University on The David Boze Show tonight, a daily talk radio program on 770 KTTH AM. If you are in the Seattle area, tune in at 4:10 p.m. East Coasters can listen online at 7:10 p.m.
Permalink | E-mail comments | Posted by Erin Osovets on April 7, 2010, at 4:18 PM
Student Defends Fraternity, Blasts Speech Code in 'Wesleyan Argus'
April 7, 2010
Student Mytheos Holt, writing in Wesleyan University's student newspaper, The Wesleyan Argus, cites a recent campus-wide e-mail sent by Dean Michael Whaley asking students to avoid the Beta Theta Pi fraternity because the fraternity did not officially affiliate its chapter with the university. The administrator implied that somehow this must mean that the fraternity intended on violating school policy and local ordinances. But according to one recent news story, the fraternity actually
implemented a new policy requiring that an off-duty MPD officer oversee their parties in the future. The officer will be hired to patrol the door and walk through the main floor in order to prevent many of the problems mentioned in the e-mail.Mytheos points out that the legitimacy of objecting to university policy really depends on which policy one is objecting to:
Here, there seems to be room for substantive disagreement over just how much of an evil is implicated, as it is not clear which policies Beta would object to following. This is an important distinction, because Public Safety is tasked with enforcing not just the law, but also the code of nonacademic conduct, which covers a much broader number of restrictions than the actual letter of Connecticut law. For instance, one drunken wolf whistle at the wrong girl from the courtyard of Beta could result in a citation for sexual harassment pursuant to the University's policies on "sexual misconduct."Mytheos goes on to cite FIRE's research on Wesleyan's speech codes:
The section on "Harassment and Abuse" is even more horrendously vague, having been singled out by the Foundation for Individual Rights in Education as a "red light" speech code. To be expected to adhere to these policies, and to have them enforced by a private security force with no constitutional protections due to the privacy of said security force, is understandably frightening, especially in an institution which the University has gone out of its way to cast as out of step with the rest of the campus.Thanks to Mytheos for his timely writing.
Permalink | E-mail comments | Posted by Luke Sheahan on April 7, 2010, at 2:43 PM
New Duke Policy Renders Students Unwitting Rapists
April 7, 2010
I didn't want to write that headline.
Not because it isn't true—it is—but because FIRE works very hard not to overstate our cases. But the closer you look at this case, the more you realize that there's no way around that headline. At Duke University, you can be a rapist and not even know it. To write anything less harsh would be, as journalists say, to "bury the lede."
Today's FIRE press release discusses Duke's sexual misconduct policy, which was instituted at the beginning of the current school year. KC Johnson, rightly lauded for his blog Durham in Wonderland and his book Until Proven Innocent (with Stuart Taylor Jr.), which are the definitive resources on the Duke lacrosse rape-hoax case, drew early attention to the problem back in September of last year, which prompted FIRE to investigate the policy in detail. The more we investigated, the worse it looked. On March 4, we finally wrote President Richard Brodhead a long and detailed letter about the problems in the policy. Duke never responded in writing. (I did receive a phone call, but the Duke lawyer who called made no substantive statements, presumably following someone else's instructions.)
This is unfortunate, as Duke has a lot of explaining to do. This policy reads as if it were written by a bunch of academics who have no understanding of how their proposals would actually work on a real campus with real students. There's nothing wrong with redefining terms per se, except that it doesn't look like Duke actually consulted even one lawyer (or even a decent law student) about the ramifications of the policy the school has now instituted.
Actually, that's the charitable interpretation. The uncharitable interpretation is that Duke knew exactly what it was doing when it crafted a policy under which you need only point a stick in a random direction to find someone who is guilty of "sexual misconduct" on campus. Since this possibility is almost too unpleasant for an old Dukie like me to contemplate, let me now get down to details and concentrate on how "careless" the authors of this policy must have been.
First of all is the shocking vagueness and overbreadth of Duke's definition of consent. The fourth "fundamental principle" under which the policy was formed is that "Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." (Emphasis added.) When it comes to real power differentials—i.e., those created by clearly defined hierarchical relationships, such as employer-employee, or teacher-student—that's undoubtedly true. If your boss is propositioning you sexually, maybe you don't feel that you can say "no" without negative consequences.
However, how do you measure a "perceived" power differential? How does one create an "unintentional atmosphere" of coercion by flaunting one's "perceived power"? What does this mean in the context of students? Does it mean that the more popular students, or older students, or athletes, or those with student government power, are inherently under suspicion when they engage in sexual activity? Who knows?
And that's the problem: this principle could mean anything in application. Many people perceive there to be a fundamental power differential between all men and women. What about better-looking and worse-looking people? Thin people and fat people? White people and black people? There can undoubtedly be perceived power differentials in all of these situations. At what point does this create an "unintentional atmosphere of coercion?" Duke doesn't say, and for good reason—there's no way to judge, leaving students confused about consent, afraid to engage in truly consensual activity, and easily subject to false claims against them. The sheer elasticity here is shocking, particularly when you realize the potential consequences for students' lives.
The section dealing with intoxication is nearly as bad. Everyone knows that drinking can lead to poor judgment. Yet if you choose to, for instance, drive while drunk, you are still held responsible for that action. If you gamble while drunk, you still have to pay your debts. Obviously, things are more complicated (as they almost always are) when it comes to sex, but you don't have to look far to find people who did something sexual with another person while drunk that they regret when they sober up. It's one thing to take advantage of someone who is insensibly intoxicated—so drunk or high that they are incapable of making their own decisions. That's a crime, and it's universally acknowledged to be a grave moral wrong. But to extend that culpability to college students who have had three beers in an hour and then go on to do something they later wish they hadn't, is hugely unjust.
Our letter explains more about how this irrational rule betrays both common sense and North Carolina law. Here's a pertinent excerpt:
North Carolina's own cases and statutes dealing with nonconsensual sexual relations are instructive. Unlike Duke's policy, they take into account both the degree of intoxication and whose decision it was to become intoxicated. The North Carolina Court of Appeals has found that North Carolina's law on rape "does not serve to negate the consent of a person who voluntarily and as a result of her own actions becomes intoxicated to a level short of unconsciousness or physical helplessness as defined by N.C. Gen. Stat. § 14-27.1(3) (2005)." State v. Haddock, 664 S.E.2d 339, 346 (N.C. Ct. App. 2008). Contrastingly, Duke's sexual misconduct policy deems sexual conduct nonconsensual simply when at least one party is at any level of intoxication, regardless of degree and of the choices of the parties involved. Duke thus turns consensual sexual conduct into punishable misconduct, turning normal students into criminals and obfuscating the meaning of true sexual offenses such as rape.
There's no way to hide from students the fact that the vast majority of sexual situations involving "power differentials" or intoxication will never go in front of a misconduct panel. After all, if they were consistently punished, the hue and cry would be deafening and nobody would recognize such rules as legitimate. I am going to go out on a limb here and say that Duke knows very well that it can never enforce its rules as written. Instead, they will be enforced only when one party complains, or, since Duke has mandated third-party reporting, when someone else complains on an alleged victim's behalf. Meanwhile, 99.9% of those who engage in Duke-defined "sexual misconduct" will get off scot-free, including married couples who drink and then go off to the bedroom. This unequal treatment makes a mockery of the policy.
So why have such rules? There are two possibilities, and again, I will present a charitable and an uncharitable interpretation. The charitable interpretation, which I suspect is correct, is that those who instituted the policy felt that it was better to make as much behavior punishable as possible, giving Duke full discretion to take advantage of the vast sweep of the rules so that it can make sure that truly bad actors don't get off on some kind of technicality. This interpretation is supported by the fact that Duke has mandated its employees to report sexual misconduct regardless of the wishes of the victim—it seems clear that Duke really, really does not want anyone to get away with date rape, especially cunning Duke students who one administrator has called masters of manipulation. If Duke has to run roughshod over things like "justice" and "equality" to catch them all, so be it.
This is the attitude that Durham County prosecutor Mike Nifong took during the Duke lacrosse scandal—he was willing to overlook any problems in the timeline and evidence of innocence, even to the extent of covering up DNA evidence, in order to make sure someone paid for the "crime"—and we all saw how that turned out. In this, he was shamefully supported by 88 of Duke's faculty members. And it seems that even though Nifong and Duke were thoroughly humiliated (and are still facing the fallout) because of their actions, Duke still figures that presuming guilt will on average catch enough of the guilty to make up for sometimes snaring the innocent. While this does not comport with our American conception of justice, it might be justifiable from a purely utilitarian perspective.
The uncharitable interpretation (which I hope is wrong) is that the overbreadth of this policy isn't a bug—it's the main feature, intended to redefine "consent" in such a way as to give women, who are more often victims of date rape than men, leverage to take back power from men who they perceive to be in control of a perceived patriarchal society. This seems to be the attitude underlying the principle that "real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." There is a legitimate academic argument to be made for such a statement. But codifying it as part of a university sexual misconduct code is a recipe for a Kafkaesque nightmare of epic proportions for those who are falsely or unjustly accused.
We will be writing more on these issues here on The Torch in the coming days and weeks.
Permalink | E-mail comments | Posted by Robert Shibley on April 7, 2010, at 1:27 PM
SFSU Policy Change Just Another in a Long Line of Free Speech Zone Reversals
April 7, 2010
Sam reported last week that San Francisco State University (SFSU) has revised its "Use of Buildings and Grounds" policy, which previously limited campus demonstrations and other expressive activities, such as distributing literature, to specified free speech zones. SFSU's revised policy allows students to distribute literature anywhere in the university's outdoor spaces so long as pedestrian traffic is unimpeded. As for rallies and demonstrations, the revised policy does not specify any free speech zones, and allows for spontaneous events "occasioned by news or issues coming into public knowledge" as an exception to its requirement for advanced reservation for outdoor student events.
The policy change is certainly a welcome move at a university that has overseen both an inexcusable investigation into a student group's protected on-campus demonstration as well as a precedent-setting defeat in court over several of its speech codes. Moreover, it's just another in a long line of reversals of university free speech zone policies that we have seen over the years, both by way of court order and voluntary policy change.
Torch readers hopefully remember FIRE's involvement in the challenge to a free speech zone policy at Texas Tech University, a proud installment in our Speech Code Litigation Project. At Texas Tech, university officials somehow felt comfortable restricting the expressive activity of 28,000 students to a single "free speech area," a gazebo measuring approximately twenty feet in diameter; students wishing to use any part of the remainder of campus for expressive activity—whether protests, pamphleteering, or distributing newspapers—were required to seek official approval at least six days in advance, meaning that they could not respond to immediate or still-unfolding news with spontaneous protest events or other expressive activity. Indeed, Texas Tech's "free speech gazebo," which had to be seen to be truly appreciated, has gone down in FIRE lore as one of the all-time memorable devices for suppressing speech, alongside such luminaries as Michigan State University's "Power and Control Wheel" and, more recently, the notorious "free speech patio" at Southwestern College in California.
In a lawsuit coordinated by FIRE, Texas Tech students successfully challenged the free speech zone policy, as well as an overbroad speech code banning "insults," "ridicule," and "personal attacks." A federal judge in the Northern District of Texas agreed with the students that the free speech zone policy unduly restricted expression on campus, ruling that even the university's policy changes, instituted after the suit had been filed to open up acres of additional free speech areas, were insufficient. Rather, the court held that the policy must be interpreted to allow free speech for students on "park areas, sidewalks, streets, or other similar common areas...irrespective of whether the University has so designated them or not." The decision, Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004), now stands as an important precedent regarding the legality of both free speech zones and university speech codes.
Unfortunately for some, not all colleges and universities got the memo on Roberts—not even, amazingly, some schools in the same federal district. Despite being in the same federal judicial district as Texas Tech—and thus bound by Roberts v. Haragan's precedent—Tarrant County College (TCC) in Texas repeatedly denied students the right to participate in national "empty holster" protests, which seek to bring attention to state laws and college policies prohibiting concealed carry on campus, through large swaths of campus. Instead, TCC told the students that they could not wear the holsters anywhere on campus and that they had to limit any protest activities to the college's free speech zones, such as the approximately twelve-foot circle constituting the free speech zone on TCC's South Campus. (TCC was the only public institution in the country to ban the "empty holster" protest.)
Once again, a federal district court in the Northern District of Texas invalidated the regulations in a lawsuit coordinated by FIRE. In a ruling handed down last month, the court held that TCC's reliance on a policy prohibiting "disruptive activities" to quarantine the protest was untenable and that the students had the right to engage in the symbolic form of protest in public areas of campus, hallways of academic buildings, and even classrooms. As part of the decision, the court also struck down a "cosponsorship" policy forbidding students and faculty from holding events on campus in association with any "off-campus person or organization." This policy, which was instituted after the commencement of litigation and seemed to come plainly in response to the student protesters' association with the national organization Students for Concealed Carry on Campus, led the court to opine that it "cannot imagine how the provision could have been written more broadly." Ultimately, the TCC students had their free speech rights vindicated, and we hope that two direct free speech zone precedents in northern Texas are enough to get the point across to schools in the area, if not to other institutions across the country. In fact, perhaps TCC should have followed the lead of nearby University of North Texas, which eliminated its free speech zones last year after receiving a letter from FIRE and declared its campus in its entirety to be open to free discourse.
Valdosta State University (VSU) in Georgia endured its own reversal of a free speech zone policy, in this case by voluntary revision rather than via court order. The university, forever to be associated with its deplorable treatment of student Hayden Barnes, maintained a policy limiting the free speech of all "persons wishing to speak on campus" to a single stage on the university's 168-acre campus. As if that weren't absurd enough, VSU limited usage of the "free speech stage" to two non-consecutive hours per day, and only on weekdays. It took three letters from FIRE, a short film, and an advertisement in U.S. News & World Report shaming VSU for its place on FIRE's Red Alert list—not to mention a change in VSU's leadership—before the university finally gave in. Rescinding its previous policy, VSU restored freedom of speech to its entire campus, declaring that expressive activity would be "uncensored" and allowed to take place on the campus green without prior reservation or other regulation. The university also announced that the infamous "free speech stage" would host additional "public discussion or debate" and would be made available at all hours, without regard to the content of speech. Happily, the policy reversal restored First Amendment rights to VSU's campus and prompted FIRE to remove the university from our Red Alert list.
Finally, it is worth revisiting one of FIRE's earliest efforts as part of the Speech Code Litigation Project: Citrus College in California. At Citrus College, students' expressive activities were limited to three small, remote areas of campus, rendering the vast majority of campus a censorship zone. Worse, under Citrus policy students speaking outside of the designated free speech areas chillingly faced the threat of suspension, expulsion, and even arrest. Students were also required to notify the college not only of their intent to use one of the free speech areas, but also of the content of their expression. Lastly, the free speech areas were only available on weekdays between the hours of 8 am and 6 pm, and use of amplified sound was not allowed. In the face of these numerous restrictions, a Citrus student challenged the college's policies in a lawsuit coordinated by FIRE. Wisely, Citrus College chose to abandon its policies rather than take the matter to trial, as the college's Board of Trustees unanimously adopted a resolution revoking the free speech zone policies as well as a policy banning "offensive...expression or language." With that, FIRE had our first victory in the Speech Code Litigation Project.
As these cases and many more demonstrate, free speech zones are a pernicious and still far-too-prevalent threat to freedom of expression on campus. I hope that our record of success in fighting these policies makes schools think twice about their own free speech zones, and that many more come to achieve policy change as San Fransisco State University did rather than suffer the same fate as Tarrant County College.
Permalink | E-mail comments | Posted by Azhar Majeed on April 7, 2010, at 10:15 AM
Cornell President Responds to Student Assembly Resolution Limiting Freedom of Association
April 6, 2010
Cornell University President David J. Skorton issued a response yesterday afternoon to a Student Assembly (SA) resolution, narrowly passed in February, that seeks to limit the ability of student groups to require that their voting members and leaders actually share the group's core beliefs. He has asked the SA to reconsider important parts of the resolution.
Resolution 44, which requires President Skorton's approval before enactment, states that student groups
So, it was with great interest that we read President Skorton's response to Resolution 44, sent to the SA yesterday and available in full here. In sum, he halves the proverbial baby by accepting some of the Resolution while rejecting other aspects of it and its implications.
With regard to Resolution 44's attempt to add new categories to Cornell's existing non-discrimination policy, President Skorton writes:
Cornell’s current policy dealing with non-discrimination is broad and effective: it bans all forms of legally prohibited discrimination in all University educational programs and activities and employment. This non-discrimination policy was adopted by the highest body of the University, the Cornell Board of Trustees, and has university-wide application in all policy related documents and agreements. The current policy prominently appears in university catalogues, brochures, handbooks, other policy documents, contracts and agreements. And several university offices make it their business to enforce the policy including the Offices of Workforce Diversity and Inclusion, University Counsel, Human Resources, and Student and Academic Services.
Since the Trustees-approved policy already encompasses all categories of “legally prohibited” discrimination, it is not clear to me (and presumably would not be clear to the Board) why the SA wishes to add several other categories of non-discrimination. The University is not empowered to formulate public policy; and should not add prohibitions that exceed those adopted by authorized federal, state, and local bodies.
The SA’s proposal to expand the categories of non-discrimination in the IO agreement — by adding “height,” “ancestry,” “immigration status,” “religious practice,” “socioeconomic status,” and “weight” — extends well beyond the Trustees-approved policy. So, I do not accept this aspect of the SA resolution, and consequently I ask the SA to reconsider it. [Note omitted.]
Next, Skorton proclaims Cornell an entirely private university (though this may not be the case), free to do as it will, but choosing to rely on constitutional jurisprudence to formulate its policies on expression and association:
May Cornell as an institution make these policy judgments without legal constraint? Yes, it may. Should the University adopt these consequential changes in how it deals with independent student organizations, particularly “religious” organizations, as the SA advocates? Yes, in some key respects I believe the SA’s recommended revisions should be accepted. But I also ask that the SA reconsider other aspects, in order to address conceivably competing policy interests between the University (and its Student Assembly) and student religious organizations.
The issues the SA resolution raises are complex; more so than they should be since it seems unassailable that all organizations, secular and sectarian, should readily embrace broad principles of non-discrimination. But when constitutional rights are perceived to pertain the stakes from all sides tend to take on different dimensions.
It is important, however, to understand that “constitutional” considerations do not control how the policy issues raised by the SA proposal should be resolved. As Cornell University Counsel James Mingle advises, the U.S. Constitution constrains governments (at the federal, state, and local levels) regarding certain governmental actions that affect individuals and entities. Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations. However, many private universities, including Cornell, typically have chosen to do so as a matter of policy.
When considering the basis and boundaries of such rights, private universities typically look to clearly established constitutional law (as developed by the courts) for guidance. And when determining how such constitutionally recognized rights as freedoms of speech, press, association, and religion should inform and/or be incorporated into university policy documents, private universities (including Cornell) are cognizant, as they should be, of their own First Amendment right as a private university of academic autonomy to determine appropriate educational policy.
Skorton finally turns to the crucial issue, the Resolution's attempt to require student organizations to accept voting members and leaders who do not agree with a given group's core beliefs:
Taking these critical considerations into account here, there is a conflict, as the SA acknowledges, between the non-discrimination provision regarding sexual orientation on the one hand, and the leadership practices of some student religious organizations which proclaim that homosexual conduct is inimical to the group’s genuinely held religious beliefs. This position may strike many of us as outdated, indeed offensive; but First Amendment principles protect even offensive speech and, within certain limits, recognize the right of private associations to tailor their membership and leadership practices. The University’s task is to take measure of the institutional and individual interests that are implicated by SA Resolution #44, and to decide how Cornell in its discretion should determine educational policy governing its relationship with and funding of independent student organizations.
Consequently, my judgment is that the following approach is most appropriate for Cornell regarding membership and leadership practices of independent organizations: (1) The current policy embodied in the IO agreement should be retained: student organizations, without exception, are required to comply with the university’s non-discrimination policy in all respects when determining their membership. (2) In its leadership practices, religious organizations may continue to limit officer posts to those members who conform to centrally and genuinely held religious beliefs of the organization; thus, the group’s legally recognized prerogative to engage in “religious discrimination” in this limited regard is permitted to take precedence over the policy against sexual orientation discrimination.
With respect to entitlement for funding, however, I believe it would be appropriate for the SA, in the exercise of its delegated authority to administer and allocate SAF funds, to consider imposing more rigorous standards for all student organizations. The SA may determine following further deliberation to condition qualification for SAF subsidies on compliance with the non-discrimination policy without exception (i.e. regarding both membership and leadership practices). Thus, student religious organizations that choose not to comply with the sexual orientation provision would not be eligible for SAF funding, but would nevertheless continue to have access to university space and services as a recognized IO. This issue deserves further thoughtful review by the SA.
For followers of FIRE's work generally, and our ongoing dialogue with Cornell specifically, this is a fascinating letter, one demanding further comment. We will provide that here in coming days.
Permalink | E-mail comments | Posted by William Creeley on April 6, 2010, at 5:00 PM
In Wake of Tarleton State Controversy, Gallaudet Refuses to Cancel Production of 'Corpus Christi'
April 6, 2010
Scott Jaschik at Inside Higher Ed notes today that Gallaudet University, the congressionally chartered college for deaf students in Washington, D.C., is resisting opposition from a religious organization to a planned production of Terrence McNally's play Corpus Christi, after the organization helped rouse successful opposition to a performance of excerpts from the play at Tarleton State University in Texas. Corpus Christi was cancelled in Texas, but will go on at Gallaudet. The play is controversial because it "modernizes" the story of Jesus and his apostles and portrays the Christ-like protagonist as a gay man.
Of the Gallaudet controversy, Jaschik writes:
The student division of the American Society for the Defense of Tradition, Family and Property, which mobilized opposition to the Tarleton State production, has been urging supporters to demand that Gallaudet call off its version of the play. The group is distributing phone numbers and e-mail addresses of Gallaudet officials, noting that Gallaudet is supported by federal tax dollars. An organizer of the group is quoted on its Web site as saying: "Just as everyone is entitled to their own good reputation, Gallaudet University has no right to harm and slander the spotless reputation of the God-Man with blasphemy, then run to academic freedom for cover."An outside group has the right to advocate against what it sees as blasphemy, of course, but a public college has no corresponding right to ban "blasphemous" expression. (For useful illustration of the problems presented by such a ban, we refer you to the example of San Francisco State University.)
Unfortunately, at Tarleton State University, the sentiment that a public college should somehow protect the reputation of religious figures became strong enough that, in spite of Tarleton State's recognition of the fact that the First Amendment forbade the play's cancellation by the university, the professor whose student was directing the play felt compelled to cancel the performance of Corpus Christi—as well as the three other student-directed performances that were to be staged—for safety reasons. Of this distressing turn of events, Will wrote:
That the performance was canceled because of threats of violence is a deeply depressing development for respect for the First Amendment in Stephenville, Texas, where TSU is located. If TSU community members, local citizens, and even the state's elected officials don't understand that (1) the First Amendment exists precisely to protect speech that challenges widely held presumptions about politics, religion, and other issues of the day and (2) the answer to speech with which one disagrees is more speech, not violence or censorship, then the phenomenon we here at FIRE call "unlearning liberty" is advancing faster and further than we feared.Admirably, Gallaudet has so far refused to bow to outside pressure to cancel the play, and further has refused to promulgate an official opinion of the play at all. As quoted by Jaschik, Provost Stephen Weiner stated:
Gallaudet University neither endorses nor condemns the views expressed in Corpus Christi, or any dramatic production. We understand that there are people who will find this play affirming, liberating, and cathartic, and others who find its message disrespectful, distasteful, and repugnant. We seek to allow all views to be aired openly and respectfully, and we hope that open discussions will allow individuals to listen to one another. This is the hallmark of an academic institution.We could hardly agree more with Gallaudet, and we applaud its strong stand in support of free speech. The curtain rises on Gallaudet's production of Corpus Christi this Thursday, and hopefully it will have nothing more to fear than the curse of the Scottish play that dare not speak its name.
Permalink | E-mail comments | Posted by Peter Bonilla on April 6, 2010, at 3:58 PM
FIRE to Lead Webinar for Administrators on 'Correcting Common Mistakes in Campus Speech Policies'
April 6, 2010
Today at 1:00 p.m. ET, FIRE Director of Legal and Public Advocacy Will Creeley will lead a 60-minute webinar for members of the Association of College Unions International. The ACUI website describes the event as follows:
Each participant will receive an electronic version of FIRE's new handbook, co-authored by Will, titled Correcting Common Mistakes in Campus Speech Policies. Administrators are also welcome to order hard copies by contacting FIRE.College union and student activities professionals often play a clear role in the enforcement of policies that regulate the time, place, and manner of free speech activity on campus, and knowledge of the related legal issues are essential for effective professional practice. In the recent ACUI Competency Assessment, needs for education varied significantly among the different functional responsibilities of the ACUI membership. However, the one skill set that all professionals—regardless of their functional area within the college union—rated highly as a professional development need was "Knoweldge of Relevant Laws/Legal Requirements."
This one-hour online learning event will address the common issues that have been observed in campus speech policies and that can easily lead to controversial cases against your institution, based on years of experience by the Foundation for Individual Rights in Education (FIRE). During this program, FIRE Director of Legal and Public Advocacy William Creeley will help participants identify and correct these common mistakes in an effort to support campus administrators in stopping speech controversies on campus before they start.
Permalink | E-mail comments | Posted by Luke Sheahan on April 6, 2010, at 10:37 AM