Rights in the News: FIRE's First Amendment Efforts Vindicated at Tarrant County College, Rewarded by Ford Hall Forum
March 19, 2010
As I wrote earlier in the week, word has already spread about FIRE's victory for free speech at Tarrant County College, which put an end to a lengthy battle over its students' right to hold an "empty holster" protest. The Star-Telegram and a local CBS affiliate were there reporting on this landmark FIRE victory, among others (including Phi Beta Cons' John J. Miller). Read my earlier post for more on that news, and visit our case page for the full story on this important win and the lengths to which TCC went to squelch the First Amendment.
Struggles like the one FIRE encountered at TCC—which spanned two years or, put another way, nearly a fifth of FIRE's existence—make our being honored with the Ford Hall Forum's Louis P. and Evelyn Smith First Amendment Award all the more rewarding, especially given the company we keep as an honoree. If you haven't done so already, be sure to read Harvey's speech from last night's ceremony about FIRE's ten-year battle to change the hearts and minds of our nation's college students, faculty, and administrators.
While on that topic, you can hardly find a better example of changing hearts and minds than Cal Poly student Will Taylor, who was won over by Adam's recent lecture at his university, and writes about it in the Mustang Daily here.
Permalink | E-mail comments | Posted by Peter Bonilla on March 19, 2010, at 4:33 PM
Five University of California Campuses Missed the Memo on New Discriminatory Harassment Policy
March 19, 2010
As the great UC San Diego free speech crisis unfolded, I noticed that UCSD had missed the memo from President Mark C. Yudof regarding the new Universitywide discriminatory harassment policy as of October 2009. (FIRE has a good idea about exactly why the policy was changed at that time, but that is a story not yet ready to be told.) This policy replaced all the old sexual harassment policies for students across the University of California system.
It appears that, like UCSD, four other campuses also missed the memo. The new policy is nowhere to be found online at UC Merced, UC San Francisco, UC Santa Barbara, or UC Santa Cruz. (It seems that the UC campuses at Berkeley, Davis, Irvine, Los Angeles, and Riverside all did get the memo and actually incorporated it into their policies.)
As President Mark C. Yudof explained to all ten UC chancellors on October 15, 2009, the old policy was problematic for several reasons including "legal vulnerabilities." Specifically, the old policy failed to track the actual standard for peer harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999): behavior that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Sexually harassing conduct also has to be (1) unwelcome, (2) discriminatory, (3) on the basis of gender, and (4) directed at the complaining individual, and these criteria are pretty much the same when it comes to other kinds of discriminatory harassment. Thus, President Yudof addressed these issues with the new policy, which largely tracks the Davis standard with regard to students and which treats all kinds of discriminatory harassment under the same standard.
The new policy does away with language that is still posted online by schools that missed the memo. For example, UC Merced's '09-10 UCM Housing & Residence Life Handbook (PDF), dated September 28, 2009, shows no sign of having been updated following Yudof's memo. In fact, the new language is seemingly nowhere to be found on UC Merced's website.
So at present, students on five UC campuses are living under superseded, unconstitutional policies that unduly restrict their protected speech. At Merced, for instance, this is because the obsolete policy defines harassment as follows:
the use, display, or other demonstration of words, gestures, imagery, or physical materials, or the engagement in any form of bodily conduct, on the basis of race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, or physical or mental disability, that has the effect of creating a hostile and intimidating environment sufficiently severe or pervasive to substantially impair a reasonable person's participation in university programs or activities, or use of university facilities; b) must target a specific person or persons; and c) must be addressed directly to that person or persons.
Compare this to the Davis standard above, and you'll see significant differences including several missing requirements under the law. If the old policy is applied to students' protected speech–speech that does not meet the exacting legal standard for true harassment, as defined by Davis–UC Merced will be violating their free speech rights. The five UC schools need to reverse the chilling effect on their students' speech and let them know that they have the free speech to which they are now entitled under both UC policy and the First Amendment.
Permalink | E-mail comments | Posted by Adam Kissel on March 19, 2010, at 3:43 PM
Harvey Silverglate on the Importance of Fighting for Free Speech on Campus
March 19, 2010
Last night I was deeply honored to accept the Ford Hall Forum's Louis P. and Evelyn Smith First Amendment Award on behalf of FIRE. I was also thrilled to be joined by Harvey Silverglate, civil liberties lawyer and FIRE Co-founder, and Steven Pinker, Harvard professor, bestselling author of The Blank Slate and The Language Instinct as well as a member of FIRE's Board of Advisors. The award, founded in 1981, is bestowed upon "individuals or organizations that demonstrate extraordinary commitment to promoting and facilitating the thoughtful exercise of our right to freedom of expression." Previous recipients have included civil rights activist Rosa Parks, musician and political activist Pete Seeger, and founder of CNN Ted Turner, so, needless to say, I am very proud of FIRE for this recognition.
My speech largely focused on the recent announcement of my new book project, while Pinker's remarks were a fascinating exploration of how the "psychology of taboo" and the urge to censor are related to each other. But because Harvey's speech did such a excellent job of recounting why FIRE was founded in the first place and the continuing importance of defending free speech on campus, I wanted to share the entirety of his speech below:
Thank you all for showing up to celebrate the Ford Hall Forum, its annual Louis P. & Evelyn Smith First Amendment Award, and this year's recipient, The Foundation for Individual Rights in Education, or FIRE. (I have to admit that I've always wanted to shout "fire" in a crowded theater, and at long last I've had that opportunity, for which I thank you – the crowd that showed up in this wonderful crowded theater.) And I thank my dear friend of several decades – Nancy Gertner – for her introduction.
I've been a member of the Forum my entire professional life, and I've come to respect it as one of the rare civil liberties organizations that has meticulously supported free speech in all situations and on all points along the ideological spectrum. For this reason, this award to FIRE has special meaning to me.
When Alan Charles Kors and I co-authored, in 1998, The Shadow University: The Betrayal of Liberty on America's Campuses, we did not have the slightest idea that the book would spawn an organization and, indeed, a movement to restore free speech, free thought and due process to higher education. And when, a year later, we co-founded FIRE–really as a matter of self-defense since we could not field, much less remedy, the huge volume of complaints we began to receive from students and professors who'd read our book–we could not have imagined what that organization would become.
There is, of course, a sad side to FIRE's longevity. When Kors and I co-founded FIRE, I thought that it would be a rather short-lived undertaking: Our message and mission carried such a powerful logic that, surely, it would take only a few short years before we succeeded in our goal of restoring liberty and procedural decency to academia. After all, how could it be that an American college student or teacher could be punished for uttering words and ideas that others–usually administrators, but sometimes other students and teachers–found offensive or inordinately challenging? How long could disciplinary tribunals continue to exist where students have virtually no chance of demonstrating their innocence and that facts are stubborn things and actually matter? How long could our colleges and universities continue to promulgate vague codes and operate kangaroo courts that would make George Orwell and Franz Kafka blush?
The answer, which became clear as we celebrated FIRE's tenth anniversary last year, is that restoring liberty and decency on our campuses is a long haul. I'm hopeful that I will live to see the day when FIRE is no longer needed. I don't know how long this will take, but I do want to report that I'm taking good care of myself in order to improve the odds that I will be here to celebrate FIRE's dissolution. That's one party I'll be sure to attend.
Why is FIRE's mission such an important undertaking?
For one thing, education has its own value. Freedoms of speech, thought, and conscience are their own imperative. Liberty is a transcendent value, and our campuses of higher education have long been deemed centers of learning where free speech and free thought are essential and are to be given special protection. And so liberty on campus is something we should fight for no matter the consequences.
Indeed, without resistance from supporters of liberty, campus administrators can be counted on to move from merely censoring what students may say, to insisting that students adopt and mouth acceptable points-of-view even if the students don't believe what they are saying. Let me tell you one of my favorite stories to emerge from my book tour, more than a decade ago, promoting The Shadow University.
I appeared live on a talk-and-call-in program on Minnesota Public Radio. It was hosted by a locally well-known moderator who expressed considerable skepticism of my book and suggested that the campus horror stories I was telling were gross exaggerations that were giving undue aid and comfort to politically conservative critics of liberal campus administrators. One story in particular engaged the skepticism of the talk-show hostess. I had told of racial sensitivity training sessions at freshmen orientation programs about the country, in which members of the incoming class, during orientation week, were asked to line up according to skin color–with the darkest-skinned African-Americans on one side of the room, and the fairest-skinned blond-haired Caucasians on the other, with every hue in between. Each student was then instructed to explain to his or her newly-introduced classmates how his or her skin color had been, thus far in life, either an advantage or a disadvantage. The political point was that in a racist society, race is destiny. This may or may not be true, of course, but it is a question to be studied and debated, I said, not a required political belief for students to mouth. I suggested that it was the worst possible form of censorship–it was not a mere prohibition against students saying what they believed, but a forced recitation of things that some of the students, at least, did not necessarily believe. Such programs, I said, bridged the gap between mere censorship and full-blown thought-reform.
As the hostess continued to berate me for exaggeration, a listener's call made it through the switchboard, and a freshman at Hamline University in nearby Saint Paul was suddenly on the air. She had just completed freshman orientation week, she reported, and the orientation sensitivity facilitators had the members of the class line up according to sexual orientation: straight students on one side of the room, gay students on the other, bi-sexuals and the confused or uncertain in the middle. The assignment was for each student, including the involuntarily newly outed, to tell his or her classmates how sexual orientation had helped, or hindered, the student's progress thus far in life. According to these diversity facilitators, sexual orientation, more than race, was destiny.
The talk show hostess gasped and dropped the accusation that The Shadow University exaggerated the state of free thought and free speech on campuses.
But there is more to it.
I've recognized for some years now a relationship between, on the one hand, the vague speech codes that can entrap virtually any student who says something found offensive by someone, and, on the other hand, the laws out here in the real world. What began on our campuses has, predictably, infected our entire society. What started in Harvard Yard now is rampant in Harvard Square.
Just last year, I published my second book, entitled Three Felonies a Day: How the Feds Target the Innocent. It is about how the United States Department of Justice uses vaguely written criminal statutes to prosecute virtually whomever it wishes, since the statutes cannot be readily understood by citizens and can be contorted to cover a wide variety of conduct that most of us would consider perfectly legal, even normal and routine. I recognized, to my horror and to my clients' great misfortune, that the federal criminal code was being utilized by overzealous prosecutors much as speech codes were a tool of overbearing campus administrators.
So here is yet another reason to combat the tyranny on our campuses; left to its own devices, the campus culture inevitably will infect the entire society. It's already begun.
There's still a big job to do to restore free speech, academic freedom, and due process to our campuses. This award from the Ford Hall Forum is, for the folks at FIRE, a real shot in the arm. It is of enormous importance as FIRE enters its second decade. I thank the Forum for this honor bestowed upon FIRE, and I'm delighted that we have, in the Forum's judgment, lived up to the high standards of non-sectarian, a-political, viewpoint-neutral, consistent support of free speech, academic freedom, free thought and due process that have likewise characterized America's oldest and most respected free speech forum.
Permalink | E-mail comments | Posted by Greg Lukianoff on March 19, 2010, at 2:18 PM
Cal Poly Student Blogger on Adam Kissel and FIRE
March 19, 2010
Cal Poly student Will Taylor has a great blog entry on the site of the Mustang Daily, Cal Poly's main student newspaper, about FIRE and the director of our Individual Rights Defense Program, Adam Kissel. Taylor writes:
What was so impressive about FIRE was that they truly are non-partisan. Kissel said that some of the cases he helped defend were completely against his personal belief system and were even shocking to him. But FIRE pushes ahead anyway. As he said at the beginning of his talk, "This is the beginning of your adult life; we want you to be able to have full and honest free debate."The whole blog entry is well worth a read, as it gives an informed student's perspective on what a FIRE speaker can bring to campus. If you want to host a FIRE speaker on your campus, you can get more information on FIRE's Campus Freedom Network's speakers page.
At a time in our country when it seems that every person involved in political issues, controversial topics and complicated situations is taking a side, it is important to have groups like FIRE that represent a middle ground. Instead of simply attacking opposing beliefs without any thought or reason, it is important to truly consider the other side of the argument. Acknowledging which parts of the argument make sense and are functional is crucial to not only strengthening one's argument but also to improving personal empathy, something I truly believe is lacking in our culture at the moment.
Permalink | E-mail comments | Posted by Robert Shibley on March 19, 2010, at 10:47 AM
FIRE's Widgets Shine the Light of Liberty into the Shadows of Censorship
March 18, 2010
As Torch readers know, many universities keep policies on the books that are embarrassingly illiberal and, at public universities, laughably unconstitutional. New York University bans "teasing," Northern Illinois University forbids "words" that "annoy," and Westfield State College prohibits "disparaging remarks that insult ... a student's cultural background," which makes me wonder how Westfield State students fared on St. Paddy's Day.
Well, there is something our readers can do to bring the light of public scorn on these policies: post FIRE's widgets to your website, blog, or Facebook profile. Then, all of your readers and friends can find out about these violations of students' rights.
FIRE currently has four widgets to choose from:
- FIRE's Spotlight widget featuring our iconic traffic light rating (red, yellow, or green). It links directly to FIRE's Spotlight page for the university of your choice. Just visit the Spotlight page for any of the over four hundred schools in our database, scroll down the page, and check out the widget on the right hand side of the screen. You'll just need to copy and paste a few lines of HTML code for your website.
- FIRE's Speech Code of the Month widget features our monthly highlight of the most ridiculous campus speech codes (check out this month's pick here). The widget will automatically update every month when we pick a new candidate for Speech Code of the Month.
- FIRE's Red Alert widget links to our list of the worst of the worst schools when it comes to violating free speech rights on campus. The Red Alert widget links directly to our Red Alert page, listing each of the six schools on our list and detailing their violations of individual rights.
- FIRE's "Support FIRE" widget links directly to FIRE's donation page. It's an easy way to direct people who support FIRE's mission to a tangible means of supporting FIRE's work.
To add the Speech Code of the Month or Red Alert widget to your website just scroll down the homepage until you see the Speech Code of the Month and Red Alert widgets on the right-hand side. Copy the HTML code from the widget box and paste it to the appropriate place on your website.
If you have a Facebook account (of course, so that you can keep up with FIRE's Facebook page), you can also post FIRE's Speech Code of the Month and Spotlight widgets to your profile. Just go to http://apps.facebook.com/fire_scotm/ and http://apps.facebook.com/speech_codes/ respectively and follow the simple directions.
Then send us an e-mail with a link to your site with the widget posted on it, your mailing address, and your T-shirt size. We'll send you a free FIRE T-shirt as a token of our gratitude.
Permalink | E-mail comments | Posted by Luke Sheahan on March 18, 2010, at 1:55 PM
Ford Hall Forum Honors FIRE with 2010 First Amendment Award
March 18, 2010
FIRE has been awarded the Ford Hall Forum's Louis P. and Evelyn Smith First Amendment Award, an honor bestowed upon "individuals or organizations that demonstrate extraordinary commitment to promoting and facilitating the thoughtful exercise of our right to freedom of expression." Greg Lukianoff, President of FIRE; Harvey Silverglate, civil liberties lawyer and FIRE Co-founder; and Steven Pinker, bestselling author and FIRE Board of Advisors member, joined moderator Judge Nancy Gertner of the U.S. District Court of Massachusetts to discuss FIRE's work and what freedom of speech means today. Previous First Amendment Award recipients include journalist Gwen Ifill, civil rights activist Rosa Parks, and CNN founder Ted Turner.
Permalink | E-mail comments | Posted by Erin Osovets on March 18, 2010, at 11:50 AM
40 Percent of Minnesota College Students Say Certain Topics or Viewpoints Are 'Off Limits'
March 18, 2010
A report on higher education in Minnesota released this morning by the American Council of Trustees and Alumni (ACTA) with the Freedom Foundation of Minnesota features FIRE's work defending the First Amendment in the state. The report, "At a Crossroads: A Report Card on Public Higher Education in Minnesota" (PDF), includes a survey of students that presents some disturbing findings.
Of most interest for Torch readers are the responses to these two questions from a professional poll taken of students at the University of Minnesota - Twin Cities campus and St. Cloud State University:
"On my campus, there are certain topics or viewpoints that are off limits." [39.1 percent of students surveyed agreed]
"On my campus, the student newspaper is free to criticize the university administration without getting in trouble." [37.5 percent disagreed]Given the state of speech codes on the campuses of U of M-Twin Cities and St. Cloud State (see below), we aren't surprised. Citing FIRE's speech code database, Spotlight: The Campus Freedom Resource, ACTA reports:
It is also notable that while Minnesota students overwhelmingly knew that the First Amendment protects their free-speech rights, they were largely unaware of whether their campuses had in place restrictive speech codes, which effectively ban certain types of expression. The Foundation for Individual Rights in Education, which maintains a comprehensive database of such policies, has concluded that restrictive policies are in place at U of M-Twin Cities and a number of institutions in the MnSCU system.FIRE's Spotlight database includes a state-by-state rundown of the speech codes that restrict students' rights on campus. Minnesota's rundown is here. In particular, FIRE rates four public universities with the worst, "red light" rating, for having unconstitutional policies that clearly and substantially restrict freedom of speech: Bemidji State University, Southwest Minnesota State University, University of Minnesota - Morris, and University of Minnesota - Twin Cities. St. Cloud State is rated with a "yellow light," threatening free speech by having no less than four ambiguous policies that too easily encourage administrative abuse and arbitrary application.
The report also features FIRE's work at U of M-Twin Cities defending the freedom of conscience and academic freedom of students and faculty members in the university's College of Education and Human Development last year. In that case, the college's Race, Culture, Class, and Gender Task Group proposed a political litmus test for future teachers whereby those with the "wrong" social and political views were to receive remedial re-education, be weeded out, or be denied admission altogether. As ACTA states the case in the report:
[T[here is ongoing controversy over whether Minnesota's public universities are honoring these commitments [to academic freedom and freedom of speech]. In late 2009, U of M-Twin Cities drew criticism for a proposed teacher education framework that would have required students to display "cultural competence" and to accept predetermined viewpoints on controversial issues pertaining to race, culture, class, and gender. Several news outlets picked up on the story and the Foundation for Individual Rights in Education—a free-speech watchdog organization—sent a letter warning of the program's threats to freedom of conscience and expression.... The university's general counsel thereafter issued a letter maintaining that it would not enforce political or ideological litmus tests, but it remains to be seen whether problematic aspects of the Teacher Education Redesign Initiative will be adopted. [footnotes omitted]We are still monitoring the situation closely. ACTA's report is worth a look by anyone interested in the state of freedom in Minnesota higher education.
Permalink | E-mail comments | Posted by Adam Kissel on March 18, 2010, at 11:21 AM
Win for Free Speech at Tarrant County College Grabbing Headlines
March 17, 2010
As we reported yesterday regarding our victory at Tarrant County College (TCC) in Texas, where students had been repeatedly denied the right to hold an "empty holster" protest, the federal district court's decision in favor of First Amendment rights on campus is a big win for student speech. Specifically, as our press release notes:
In his decision, U.S. District Judge Terry R. Means found that TCC's reliance on a policy prohibiting "disruptive activities" to restrict students Clayton Smith and John Schwertz from holding an "empty holster" protest violated the First Amendment. Judge Means further ruled that TCC's sweeping prohibition on "cosponsorship," which forbade students and faculty from holding campus events in association with any "off-campus person or organization," prevented TCC students "from speaking on campus on issues of any social importance" and was therefore "overly broad" and "unconstitutional on its face."Unsurprisingly, this news has perked up the ears of the media. Bill Hanna of the Star-Telegram was first on the scene, adding this insight into the proceedings:
During the trial, Means recalled dealing with volatile protests on the SMU campus as student body president that were allowed to take place with the assistance of the administration. In his ruling, Means expressed frustration that TCC did not seem to embrace the idea that a campus is "a marketplace of ideas" for its students.CBS 11 of Fort Worth has the story as well, as does the Chronicle of Higher Education. Courthouse News Service briefly gives the ins and outs of Means' decision (which you can read here). KRLD 1080 (Dallas) also covers the victory secured by Fort Worth attorney Karin Caigle, FIRE and the ACLU-TX, and KFYO 790's "Pratt on Texas" (Lubbock, TX) wrote yesterday that the case would be covered on yesterday's show.
The blog of the Thomas Jefferson Center for the Protection of Free Expression also carries word of the victory, which has finally undone the policy that earned TCC a 2009 Jefferson Muzzle. A full accounting of TCC's misdeeds, of course, will live on in the Jefferson Muzzle archives, not to mention on TCC's case page at FIRE's website.
Permalink | E-mail comments | Posted by Peter Bonilla on March 17, 2010, at 4:01 PM
Charles Muscatine, Champion of Freedoms of Expression and Conscience on Campus: 1920-2010
March 17, 2010
Every movement has its heroes, and the movement for freedom of conscience and freedom of speech on our nation's campuses is no exception. So it was with sadness that we at FIRE read about the recent passing of noted Chaucer scholar and University of California at Berkeley Professor Charles Muscatine, a hero to the free speech movement.
A World War II veteran and triple-graduate of Yale University, Professor Muscatine is known and revered for refusing to sign a loyalty oath imposed upon the faculty at Berkeley. In 1950, the University of California system began enforcing a state law requiring all employees, including professors, to sign a loyalty oath. Despite considerable professional and financial risk, not to mention the social stigma associated with such a move, Muscatine refused. As a result, he was fired, along with thirty other Berkeley professors. He and his colleagues filed suit and won, winning a major victory for freedom of speech. The initial court ruling in the case, Tolman v. Underhill, is available here. In 1954, Muscatine returned to Berkeley to finish out his career.
His obituary in yesterday's San Francisco Chronicle illustrates that Muscatine knew precisely the importance of the principle at stake:
We are happy to celebrate the life and legacy of this principled First Amendment champion."I had been insisting to the kids that you stick to your guns and tell it the way you see it, and you think for yourself and you express things for yourself," he explained, years after the loyalty oath controversy. "I felt that I couldn't really justify teaching students if I weren't behaving the same way. So I simply couldn't sign the oath."
He saw it as a violation not only of academic freedom, but of the oath to the U.S. Constitution he had already taken when he entered the Navy during World War II. A lieutenant, he landed at Omaha Beach during the D-Day invasion of Normandy.
Many UC employees believed they had to sign the loyalty oath because they had families to support, or a mortgage. Professor Muscatine had both. Yet he had no choice, said his daughter, Lissa Muscatine, a speech writer for Secretary of State Hillary Rodham Clinton.
"For him, fighting against Hitler in World War II to define democratic principles was the same as standing up for democratic principles by not signing the loyalty oath," she said.
Permalink | E-mail comments | Posted by Luke Sheahan on March 17, 2010, at 3:53 PM
American Council on Education's Supreme Court Brief Gets It Wrong on 'Martinez'
March 17, 2010
The American Council on Education (ACE) and a coalition of other higher education organizations filed an amici curiae brief on Monday (.PDF) on behalf of University of California Hastings College of the Law in Christian Legal Society v. Martinez, the upcoming Supreme Court case for which FIRE filed its own amici brief in February with Students for Liberty on behalf of the Christian Legal Society (CLS). Unfortunately, the ACE brief advances a number of arguments for upholding the Ninth Circuit Court of Appeals' ruling in favor of Hastings that are dangerous, misleading, and plain wrong. It also mischaracterizes key arguments made in FIRE's amici brief, which it specifies by name.
While we await oral arguments before the Supreme Court in this case—scheduled for Monday, April 19—I would like to briefly address some of ACE's arguments here, as well as set the record straight on the parts of FIRE's brief to which the ACE brief alludes. Additionally, given the number of important issues and concerns raised by the ACE brief, we intend to respond in greater depth in additional posts in the coming days.
In Martinez, the Ninth Circuit upheld Hastings' decision to forbid its chapter of the Christian Legal Society (CLS) to organize its group around shared religious and cultural beliefs. The Ninth Circuit's ruling permitted Hastings to maintain a nondiscrimination policy mandating that student groups accept "all comers" as voting members, even students who disagree with the group's core beliefs and founding tenets. As FIRE pointed out in our brief, this requirement fundamentally encroaches upon the First Amendment associational rights of expressive student organizations such as CLS, as forced inclusion of voting members holding views contrary to an organization's mission robs it of the ability to control and disseminate an accurate, consistent ideological message. Additionally, we pointed out that the requirement leaves groups with minority viewpoints subject to hostile takeovers by students in the majority (not to mention other distortions of the organization's votes), because those opposed to a particular group's views and mission are potentially able to force their way in and dissolve the group from within. (Indeed, we provided specific evidence that this warning is justified, which I discuss below.) Hostile students would be permitted to do much more than engage in debate with the organization's members during its own meetings; they also would be able to intentionally vote against the expressive mission and purposes of the group. In short, the Ninth Circuit's decision, if upheld by the Supreme Court, carries the potential to wreak havoc on the First Amendment rights of student groups on campuses across the country.
Given the importance of this case and of the rights and principles at stake, it is disappointing that ACE's brief makes a number of specious and short-sighted arguments in favor of affirmance.
First and most dangerously, the brief argues that an institution's decision to compel recognized student organizations to accept all comers as members is an exercise of that institution's academic freedom—specifically, its right to define and control its educational mission. The ACE brief argues:
That different institutions have chosen different approaches to RSO membership simply reflects the fact that each makes its own educational judgments. There is no reason to foreclose such judgments by forcing colleges and universities nationwide to adopt a one-size-fits-all approach to RSO membership. ... The question, instead, should be whether any particular institution's educational judgments are reasonable.The key problem with this argument is that academic freedom has never been defined or accepted in the courts as constituting an all-encompassing institutional right to control all aspects of the educational process and of campus life. Stated differently, the right of an institution to define its educational mission does not give the school carte blanche to pass any and all regulations - particularly where, as here, such regulations infringe upon adult students' speech and association. There is little to the argument that the message disseminated by a student group such as CLS can reasonably be construed as school-sponsored or curricular speech. Rather, as the Supreme Court has already made clear, it is the student group's own speech. See Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 229 (2000) (student groups in a similarly structured program did not speak for the government); Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 834 (1995) (with regard to a similarly structured program, the school is funding students' private speech). As such, the academic freedom and educational judgments of Hastings as an institution apply with considerably less force here, and do not trump CLS's right to expressive association.
That is so not just because of the tests this Court has articulated, see Part II, infra, but because the First Amendment provides colleges and universities breathing room for their educational judgments. "Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." [Citation omitted.]
Even more critically, ACE's argument fails to acknowledge the importance of the associational rights belonging to expressive groups such as CLS. That these are fundamental First Amendment rights subject only to the most compelling of state interests has long been established by such Supreme Court precedents as Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). The ACE brief gives short shrift to these rights and instead takes the approach that institutional academic freedom trumps them in the same way that it would with regard to, say, curricular decisions. This lack of a finer analysis, and ACE's reliance instead on an all-encompassing view of institutional academic freedom, renders their argument weak and unconvincing.
Next, the ACE brief argues that nondiscrimination policies such as Hastings' do not violate the First Amendment because, under the Court's precedents in Healy v. James, 408 U.S. 169 (1972) and Widmar v. Vincent, 454 U.S. 263 (1981), they are reasonable regulations on student conduct:
Healy and Widmar foreclose CLS's First Amendment claims because those cases hold that a student group seeking official recognition enjoys no constitutional right to violate "reasonable school rules governing conduct." Healy, 408 U.S. at 191. Despite CLS's claims to the contrary, nondiscrimination and open-access policies are "school rules governing conduct," and they are reasonable.This argument is plainly wrong because what the ACE dismissively characterizes as "conduct"—the ability of student groups to make belief-based decisions about membership so that each group is able to convey the message it wants to—is in fact expressive association, protected by the First Amendment. While ACE may choose to have an unduly narrow conception of what constitutes student speech on a college campus, ACE and its coalition cannot ignore that the impact of the regulation is substantial and ultimately restricts the ability of students to associate around shared beliefs, a right which falls squarely within the protections of the First Amendment, as the Supreme Court decisions cited above make clear. Further, while nondiscrimination policies may prevent student organizations from engaging in invidious, status-based discrimination—since a prospective member's immutable status (e.g., race, gender, sexual orientation, etc.) does not necessarily determine his or her beliefs--it is fundamentally unreasonable to demand that student groups refrain from belief-based "discrimination" by requiring that a group's voting members and leadership actually believe in the group's core tenets. That's not discrimination; that's the right to expressive association.
By relying on semantics to argue that belief-based membership decisions constitute student conduct and not expressive activity protected by the First Amendment, ACE and its coalition fail to acknowledge the negative impact of nondiscrimination requirements such as Hastings' on campus discussion and dialogue—not to mention the harm suffered by a group when it is denied access to mandatory student activity fees and other benefits associated with registration.
The ACE brief also takes issue with FIRE's amici brief, by name, and contests our brief on two important points. First, ACE argues:
CLS and its amici offer, as one of their central themes, that open-access policies are unwise because such policies "seek[ ] a manufactured ‘diversity' of beliefs within a group at the cost of a true diversity of beliefs among groups." Br. of Amici Curiae Foundation for Individual Right [sic] in Educational [sic] et al. 13 (emphases in original) ("FIRE Br."); see Pet. Br. 50 ("There can be no diversity of viewpoints in a forum if groups are not permitted to form around viewpoints."). This argument relies on spurious factual assumptions. Open-access policies are not about "manufacturing diversity of beliefs"; they are about allowing students who so choose to experience the activities and beliefs of people different from themselves.This argument, while creative, also misses the mark. First, while "allowing students who so choose to experience the activities and beliefs of people different from themselves" may be a commendable goal, it in no way trumps the First Amendment right student groups enjoy to determine their own message, leaders, and voting membership. In other words: it would be a nice outcome, but that doesn't mean you can trample established First Amendment rights to make it so. Moreover, there are ample opportunities on a college campus to exchange views with others who are different from oneself and to engage in rigorous debate and dialogue—opportunities which include, at Hastings, the meetings and events of CLS, which are open to the general public—without having to force oneself into a campus group with which one fundamentally disagrees.
Second, the ACE brief mistakenly argues:
Moreover, open-access rules do not bar groups from "form[ing] around viewpoints"-unless the groups are subjected to "hostile takeover" by those with opposing views. But on that point the briefs of CLS and its amici are long on rhetoric and short on facts. FIRE's brief offers no examples of such hostile takeovers, anywhere in the nation. See FIRE Br. 8-10. Also, university student-affairs officials can be counted on to step in if, as a result of such a takeover attempt, like-minded students are unable to form a group of the students' choice. There is no record evidence to suggest, or any reason to believe, that students [sic] groups like CLS will be hijacked by students hostile to CLS's viewpoint.On the contrary, these concerns are real, not hypothetical, and our amici brief in fact shows this to be the case. As we discuss in the brief, in 2007, a political student organization at Central Michigan University (CMU), the Young Americans for Freedom (YAF), was told by the administration that it had to comply with the university's nondiscrimination policy, leading other CMU students to start a Facebook.com group where students posted messages suggesting ways to destroy the YAF group. One post, for instance, suggested that students "go to their meetings and ... vote eachother [sic] onto the board and dissolve the group." The fact that these students' attempts to take over YAF and dissolve the group did not ultimately come to fruition in that case does not alter the reality that the forced inclusion of students holding opposing views is indeed a bad practice; it does not take a completed hostile takeover to make this clear. If ACE and its coalition were to give our brief a closer read, they would discover that the CMU example, as well as other related examples discussed therein, showcase that the desire of students to take over and dissolve organizations with which they disagree is real.
For these reasons and more, the ACE brief misses the mark on Martinez. I urge readers to give our amici brief a close read and to consider the arguments we make, so that they may have a proper understanding of the rights and principles at stake in this important case. We'll have more on the ACE brief later, so stay tuned.
Permalink | E-mail comments | Posted by Azhar Majeed on March 17, 2010, at 3:02 PM
Victory for Free Speech on Campus: Federal Court Strikes Down Gun Rights Protest Restrictions at Tarrant County College
March 16, 2010
As announced in our press release earlier this afternoon, we received word late yesterday that a federal district court found restrictions on symbolic speech on campus maintained by Tarrant County College (TCC) to be unconstitutional. The ruling is a striking victory for the First Amendment on campus.
In his decision, U.S. District Judge Terry R. Means found that TCC's reliance on a policy prohibiting "disruptive activities" to restrict students Clayton Smith and John Schwertz from holding an "empty holster" protest violated the First Amendment. Judge Means further ruled that TCC's sweeping prohibition on "cosponsorship," which forbade students and faculty from holding campus events in association with any "off-campus person or organization," prevented TCC students "from speaking on campus on issues of any social importance" and was therefore "overly broad" and "unconstitutional on its face."
The lawsuit was filed on November 4, 2009, by Fort Worth attorney Karin Cagle in cooperation with FIRE and the American Civil Liberties Union (ACLU) of Texas. On November 6, 2009, Judge Means issued a temporary restraining order prohibiting TCC from quarantining protected speech to the school's tiny "free speech zone," holding that continued operation of the free speech zone would result in "immediate and irreparable injury" to students' free speech rights.
In December 2009, following the district court's order, TCC voluntarily revised several policies challenged by the lawsuit, including the free speech zone policy. TCC also introduced the unconstitutional ban on cosponsorship in its December revisions. The students' lawsuit was amended to include a challenge both to this new policy and to ask the court to invalidate the former free speech zone policy on the ground that TCC would otherwise be able to reinstate it following the conclusion of the lawsuit.
While Judge Means struck down the cosponsorship policy, he also held that the challenge to the free speech zone was moot because there was no indication TCC would revert to the discredited policy. And while Judge Means held that because both Smith and Schwertz are students they didn't have standing to bring claims against policies regulating the speech rights of non-student campus visitors, he nevertheless strongly implied that if challenged by a non-student, the policies "seem quite broad and potentially susceptible to challenge for overbreadth or vagueness."
After the lawsuit was filed, the state of free speech at TCC started improving almost immediately. Following the district court's issuance of a temporary restraining order just two days after the complaint was filed, Smith and Schwertz successfully engaged in a November protest for their cause, including the wearing of empty holsters on most of the campus. In yesterday's opinion, Judge Means pointed out that "[c]ontroversial symbolic speech, with the potential to evoke a strong and possibly violent emotional response from those who see it has time and again been held protected, even in nonpublic forums, including the classroom." Further, Judge Means dismissed as unfounded TCC's concerns that the symbolic protest might disrupt the campus, citing Smith's and Schwertz's peaceful November 2009 protest as proof to the contrary and noting that "even those with whom they spoke that disagreed with SCCC's views seemed to appreciate the fact that Smith and Schwertz were exercising their right to speech."As Torch readers know well, in the past two years, TCC has twice prohibited students from participating in the SCCC protest on campus. FIRE's involvement in the case began shortly after March 2008, when TCC student Brett Poulos e-mailed TCC South Campus President Ernest L. Thomas to describe the empty holster protest. In an April 10 response, Juan Garcia, Vice President for Student Development, "granted" Poulos' request to stage a protest on the South Campus, but Garcia changed the fundamental nature of the protest by prohibiting the protesters from wearing empty holsters anywhere on the South Campus, even in the designated free speech zone. The South Campus free speech zone, according to Poulos, is an elevated, circular concrete platform about 12 feet across. In a later meeting, Garcia told Poulos that TCC would take adverse action if SCCC members wore empty holsters anywhere, strayed beyond the school's free speech zone during their holster-less protest, or even wore T-shirts advocating "violence" or displaying "offensive" material. Poulos came to FIRE for help.
FIRE wrote to President Thomas on April 24, 2008, explaining that TCC's free speech zone represented a serious threat to liberty on campus and that FIRE has defeated similar free speech zones on campuses across the nation, including the University of North Carolina at Greensboro, West Virginia University, University of Nevada at Reno, Citrus College in California, and Texas Tech University. A TCC administrator responded on May 20, 2008, informing FIRE that the university would not reverse its decision. Poulos' protest did not take place.
Similarly, on April 10, 2009, Clayton Smith e-mailed TCC administrators to inform the college of his intent to hold an "empty holster protest" on TCC's Northeast Campus in coordination with SCCC's nationwide protests from April 20-24. On April 16, however, a TCC administrator e-mailed Smith, prohibiting Smith and other protesters from wearing empty gun holsters on campus, even in the free speech zone, not only during the protest but also at any other time. Smith was informed that students were not allowed to hand out flyers on campus. Like Poulos, Smith came to FIRE for help. Working in conjunction with the ACLU of Texas, FIRE aided Smith in finding counsel. I filed a declaration with the court in support of the suit, detailing FIRE's efforts at TCC and the college's refusal to recognize the First Amendment rights of its students, and the court's opinion today takes note early on of TCC's repeated censorship.
It's taken almost exactly two years since FIRE's first involvement with the case, but all of us here at FIRE are very pleased that yesterday's ruling vindicates the points FIRE has been making right from our first update about censorship at TCC. As Robert wrote then:
So why the prohibition on holsters? An empty holster is merely a piece of leather. By itself, it is likely to be dangerous only if you were to hit someone with it. Other articles of clothing or personal items that college students are likely have on their person, such as books or backpacks, are inherently far more dangerous. Therefore, the objection to the holsters cannot be based in a real concern for safety; rather, it is based on what ideal administrators believe the empty holsters are meant to represent.
Interestingly, Robert's basic point—that the safety rationale doesn't justify restricting protected speech in this instance—is echoed in the court's opinion:
In any event, there was no evidence linking empty-holster protests to an increased likelihood of a shooting on campus. [TCC Interim Chancellor Dr. Erma] Hadley testified that she feared that "some student [would] show up on campus with a gun in the holster." (Tr. Trans. Vol. III, p.30.) But if anything, that would be the exact opposite effect of the empty-holster protest. SCCC members wear empty holsters to highlight the fact that they are not armed. And there is simply no logical force behind such a fear; if a person wished to bring a firearm onto campus undetected, he likely would not wear it in a holster, exposed for all to see....
TCC's decision to prohibit students from protesting the status of the law and school policy on concealed firearms by wearing empty holsters to class rests on an "undifferentiated fear or apprehension of disturbance." See Tinker, 393 U.S. at 508. This, of course, "is not enough to overcome the right to freedom of expression." Id. "Much nondisruptive speech—such as the wearing of a T-shirt or button that contains a political message. . . is still protected speech even in a nonpublic forum." Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987). Controversial symbolic speech, with the potential to evoke a strong and possibly violent emotional response from those who see it has time and again been held protected, even in nonpublic forums, including the classroom. [Citations omitted; emphasis in bold added.]
I urge FIRE supporters to read the opinion; it's an interesting one.
Finally, I'd like to thank Brett Poulos, Clayton Smith, and John Schwertz each for standing up for the First Amendment, contacting FIRE, and letting us know that they were being censored on their campus. The only way FIRE can help is if we're aware of the problem, and filing a civil rights lawsuit against one's school takes real courage. Today, all students at TCC enjoy the free speech rights to which they're legally entitled because of these students' willingness to speak up.
I'd also very much like to thank Karin Cagle and the excellent staff at the ACLU-TX for their hard work on this case, and congratulate them on this victory.
Finally, I'm pleased to chalk up the latest win in FIRE's Speech Code Litigation Project--an initiative working to dismantle unconstitutional speech codes on public university campuses--which has won crucial victories at Shippensburg University in Pennsylvania, Texas Tech University, the State University of New York at Brockport, Citrus College in California, San Francisco State University and the California State University System, Temple University, and now Tarrant County College.
We'll have more analysis of this case in the days to come, so stay tuned.
Permalink | E-mail comments | Posted by William Creeley on March 16, 2010, at 5:01 PM
Higher Ed Organizations File 'Amicus' Brief Opposing FIRE
March 16, 2010
Yesterday, the American Council on Education (ACE) and 14 other higher education groups filed an amicus brief supporting the Hastings College of the Law's ban on the Christian Legal Society's use of belief-based criteria as a basis for determining who can be its leaders. Inside Higher Ed has a lengthy story on those who filed briefs opposing FIRE's position in the case, a group that also includes the American Association of Law Schools and the Association of Jesuit Colleges and Universities. FIRE will be tackling the issues raised in some of these briefs starting tomorrow, when Azhar Majeed will blog about ACE's brief in the case. Stay tuned.
Permalink | E-mail comments | Posted by Robert Shibley on March 16, 2010, at 4:24 PM
Join FIRE's Eternal Flame Society
March 15, 2010
"We want our grandchildren to be among the millions who have profited from FIRE's hard work. We want them to be educated in a campus culture that fosters innovation and individual liberty, not repression."
- Mike and Bonnie Donahue, FIRE donors
Like Mike and Bonnie Donahue, many Torch readers are concerned about the state of free speech on our nation's campuses—not because you are currently enrolled in college, but because those dearest to you are, and because you know that America's future depends on their education. Mike and Bonnie decided that they didn't want to leave their grandchildren's futures to chance. Through their decision to include FIRE in their estate plans, they chose to invest in a future of free speech and to leave a legacy of liberty that will have an impact far beyond their own lifetimes.
FIRE deeply appreciates the outstanding support of our donors, and in today's economic climate, we want to give you every opportunity to continue to support FIRE's important work. Over the years, a handful of donors have shared with us their decision to include FIRE in their estate plans. Both grateful for their generosity and honored that they entrust us with their legacy, we celebrate these individuals as members of FIRE's Eternal Flame Society. Today, please consider leaving a lasting legacy of your own and joining FIRE's Eternal Flame Society.
Planned gifts not only benefit FIRE and the thousands of students and faculty that we serve--they can also benefit you. Through planned giving, FIRE donors can receive personal benefits that include:
• seeing significant tax savings
• receiving income throughout their lifetime
• honoring a loved one through a gift
• enjoying the feeling of helping students and professors for generations to come
For more information about planned giving options, visit our planned giving webpage, call our Development office at 215-717-3473, or e-mail us at support@thefire.org. We are looking forward to working with you to discover the perfect gift that meets the needs of you and your family and fulfills your philanthropic vision.
Permalink | E-mail comments | Posted by Alisha Glennon on March 15, 2010, at 4:43 PM
Follow FIRE Chairman Harvey Silverglate on Twitter!
March 15, 2010
FIRE Co-founder and Chairman Harvey Silverglate, author of the book Three Felonies a Day: How the Feds Target the Innocent, can now be followed on the popular microblogging site Twitter. You can follow him at twitter.com/3felonies as he discusses current developments that are relevant to his book. You can also read more about how Harvey's experiences with FIRE cases helped lead him to write his latest book here.
Permalink | E-mail comments | Posted by Robert Shibley on March 15, 2010, at 1:59 PM
Rights in the News: First Amendment Wins Out at UCSD
March 12, 2010
As we've written here a couple of times already, FIRE was pleased to announce yesterday that the students of the University of California, San Diego won't have to linger another week under the media freeze imposed by its student government. A special thanks to the many who wrote to Chancellor Marye Anne Fox and student government president Utsav Gupta to make their voices heard at UCSD.
We're certainly not done watching UCSD, however; nor are we done watching nearby Southwestern College, whose paper The Southwestern Sun, as I wrote earlier, has continued to keep the pressure on the SWC administration with FIRE's help. As of now, SWC has made no progress remedying its unconstitutional free speech policy. It has, however, laughably determined one student's artwork to be a credible threat to the order of the campus. Read the Sun for more on the efforts of FIRE and SWC students and faculty to restore the First Amendment at Southwestern College.
Finally, don't miss Robert's Pajamas Media column on the will to censor racist speech and its counter-productiveness, as well as Wendy Kaminer's Atlantic piece singling out FIRE's unique non-partisan nature in its defense of student and faculty of all religious and political views.
Permalink | E-mail comments | Posted by Peter Bonilla on March 12, 2010, at 5:03 PM
Behind the Scenes at UCSD: 'Guardian' Shows the Lengths Student Government Went to Gain Control of Media
March 12, 2010
After three weeks of heated debate at the University of California, San Diego (UCSD), FIRE announced yesterday that the Associated Students of UCSD (ASUCSD) has finally restored funding to the 33 student media organizations whose quarterly funding was frozen by ASUCSD President Utsav Gupta following the utterance of a racial slur on UCSD's student-run television station.
The UCSD student newspaper The Guardian points out that, according to the Standing Rules of the ASUCSD, the governing body was required to do so:
According to the A.S. Standing Rules, a funding freeze is automatically lifted by Wednesday of Week 10 if the council doesn't pass legislation that counters that rule. By default, council returned to funding media organizations with the same system as before.But as The Guardian points out as well, it was a fight to the finish; its editorial board describes the scene of Wednesday's ASUCSD meeting as "mayhem." The California Review's Alec Weisman has posted video footage of the entire meeting, which backs up The Guardian's assertion.
But for a principled stand by a majority of the ASUCSD, Wednesday night's proceedings could have resulted in a drastic reduction of the rights of UCSD's student media organizations and the consolidation of all power over their funding into the hands of one ASUCSD member. Fortunately, the AS Council shot down this option, put forth by ASUCSD Vice President of Finance and Resources Peter Benesch, who stood to gain near-total control over the student media had it passed. Benesch himself describes his proposal as such:
"Essentially, this idea supposes that we will close the open forum where everyone can come and ask for money and we have to distribute in a viewpoint-neutral manner, and move to a model where the A.S. will have to provide a large amount of funding through advertising initiatives," Benesch said.A writer for The Guardian put it better:
Yikes. Making matters worse, whether or not a media organization would receive funding would depend on its adherence to UCSD's Principles of Community—essentially giving disciplinary powers to what should be an aspirational set of requirements. We pointed out the dangers of this in our February 23 letter to UCSD Chancellor Marye Anne Fox:VP of Finance and Resources Peter Benesch said the heart of democracy is the ability to choose whose voice is heard over others.
Any determination by you or your administration that the Principles of Community are not merely aspirational, but rather comprise mandatory beliefs, attitudes, and demeanors, would unquestionably violate the First Amendment. For example, the Principles of Community state that UCSD is "committed to the highest standards of civility and decency toward all." As a statement of institutional values, without any possibility of official enforcement, this moral code is perfectly acceptable. But if this commitment to "civility and decency toward all" were to constitute required behavior, subject to punishment if not observed, then UCSD would be violating the First Amendment rights to freedom of expression and freedom of conscience of its students.Unfortunately, Benesch's proposal had its adherents, among them Senator Alyssa Wing, who stated that "[w]e've really been urged to do something to uphold the Principles of Community." (By whom, I wonder?) Student Regent delegate Jesse Cheng's advocacy for Benesch's proposal was similarly misguided:
"We stand for this protocol because this issue is an issue of diversity and not really an issue of free speech and even less an issue of the Constitution," Cheng said. "If it does come down to legality, it's the Supreme Court's responsibility ... you don't have to worry about that here."Legality is the Supreme Court's responsibility, according to the "Student Regent?" Double yikes.
An "opt-out" model was also considered, which would have allowed UCSD students to withhold a portion of their mandatory student activity fees from funding certain groups on personal moral grounds. One student advocated for such a model as "empowering students to make a decision with how the campus is run."
Asked for comment by The Guardian, ACLU of San Diego & Imperial Counties Legal Director David Blair-Loy called both proposals unacceptable:
Aside from the unconstitutionality of these proposals, especially Benesch's self-aggrandizing "government speech" proposal, The Guardian's editorial board suggests that Benesch and Gupta were dishonest in their pursuit of this oppressive policy, and worked behind the back of the committee they had formed to consider possible revisions to the provisions for the funding of student media organizations. The committee, which included Kris Gregorian, Editor in Chief of The Koala—the controversial satirical paper at the center of the calls for censorship—was resistant to such drastic measures, and didn't endorse either solution. The committee also did not put forth any proposed legislation of its own at the meeting."There are numerous student orgs that engage in all forms of protected speech that aren't print," Blair-Loy said. "A.S. has funded many forms of controversial speech, and they can't treat student press differently from the way they treat other student orgs. The First Amendment doesn't just protect freedom of speech, it protects freedom of the press."
He said that these two proposed systems violate Section 61.13 of the UC Regents policy, which states that student government must provide funding on a viewpoint-neutral basis.
"I never say preliminarily that I will sue before I do, but if A.S. adopts either of these options, their chance of being litigated will increase exponentially," Blair-Loy said.
Here's how the The Guardian's editorial board describes the effort:
Gupta, of course, dismissed out of hand the possibility of any shenanigans on their part, calling the protests "scare tactics used by the majority to attempt to silence the minority." He went on to insist that the ASUCSD was a "moderate" body that would "continue to substantially fund media organizations." I assume, given his on-the-record statements, that "substantially" is a euphemism for "every publication except those that print content of which we disapprove."Which now looks suspiciously like a scheme, as everyone appointed to the committee had a similar stance: All were generally unwilling to recommend any funding model with content bias. So committee members — including Koala Editor in Chief Kris Gregorian and very vocal Sixth College Senator John Condello, a presidential candidate for spring — let their guard down, thinking they had this one in the bag. Gupta fooled them momentarily, moping around like a defeated servant of the people. He and partner-in-crime Vice President of Finance and Resources Peter Benesch stood by dopely while the rest of the committee trumpeted no-bars content-neutral funding, then wasted a week making friends and out-articulating each other on exactly the same points.
Gupta and Benesch were the odd ones out. They advocated an unpopular "government speech model" that would allow the council to fund only publications that aligned with its principles. Gupta assured the committee it shouldn't bother with PowerPoints, and would only have to present a casual recommendation to the council.
The committee didn't even bother to take an official vote on its stance, too busy waxing starstruck by Gregorian and drooling over the Bill of Rights. Condello literally set his feet up on the table during their final get-together (really more a wine garden than a meeting). So imagine the cool kids' surprise when, at last night's official media-funding presentation, Benesch whipped out the PowerPointed legislation for a government speech model — hoping to charm the council with nicely packaged research he had kept under wraps from the estranged committee.
In such a chaotic environment, with so many emotional students begging for action, there was the danger that councilmembers would join Gupta and Benesch under the pressure. But Benesch's model was obviously terrible: Basically, every single newspaper would exist within the overly sensitive ideals of A.S.. Every newspaper would be an A.S. newspaper. Fortunately, that red flag flew above the mayhem, and the ‘Yes' vote didn't wildfire off the duo's arson.
Nice try, guys.
As I mentioned in the opener, it was in some ways a foregone conclusion that UCSD students would wake up on Thursday morning with some form of media rights restored; being either the (perfectly fine) status quo or Gupta and Benesch's nuclear option, which would have made a mockery of the Constitution and made nearly certain a lawsuit against the university. But only one of those resolutions would have been satisfactory from the point of view of FIRE, the ACLU-SD, and the First Amendment. We're pleased freedom of speech won out.
So if UCSD's students think things have simply reverted to business as usual, I advise them to pick up the nearest copy of The Guardian to see just how close that came to not being the case—and I urge them to be vigilant regarding the possibility of future efforts to change the funding structure of their student media.
Permalink | E-mail comments | Posted by Peter Bonilla on March 12, 2010, at 4:30 PM
Kaminer on Freedom of Conscience in 'The Atlantic'
March 12, 2010
Author, civil libertarian, and member of FIRE's Board of Advisors Wendy Kaminer has an article on The Atlantic's website this week about attacks on freedom of conscience, particularly in the field of counseling and social work. Entitled "Gay Rights and Anti-Gay Liberties," Kaminer's article discusses how the controversy over gay rights has had the unfortunate side effect in some cases of compromising the rights of those who believe, for instance, that homosexuality and same-sex marriage are immoral. For instance, she relates the disturbing story of Eastern Michigan University counseling student Julea Ward:
Julea Ward had nearly completed a graduate degree program in counseling at Eastern Michigan University (EMU) when she was dismissed for refusing to affirm homosexual behavior as morally acceptable and then refusing to enter a "remediation" program designed to demonstrate the "error of her ways." It should be stressed that Ward was not asserting a prerogative to counsel gay clients in spite of her views; instead, she was relying on the option of referring them to other therapists, and she had done so in a clinical program. Still, she was dismissed for violating EMU policies, which incorporated American Counseling Association ethical codes and included an obligation to "tolerate different points of view," as well as prohibitions on "unethical, threatening, or unprofessional conduct" or discrimination on the basis of sexual orientation, (among other characteristics, including religious belief). Ward has sued EMU in federal court (the case is pending, awaiting a ruling on cross motions to dismiss); she is represented by the Alliance Defense Fund, (and this summary of facts derives from the ADF brief).The whole article is well worth a read. Kaminer also notes that while many civil liberties groups find it difficult to wholeheartedly support the right to speak of those with whom they disagree, FIRE is not one of them:
Of course the gay rights movement (like the feminist movement) includes internal disputes about the wisdom or justice of infringing on First Amendment rights. In Maine, for example, leaders of the campaign for equal marriage publicly opposed the complaint against Donald Mendell [a licensed high school guidance counselor in a Maine public school who appeared in a tv ad supporting the successful 2009 ballot initiative to repeal Maine's equal marriage law]. But, with the notable exception of the non-partisan Foundation for Individual Rights in Education, which defends the rights of all students, regardless of their views, advocacy groups tend to focus on defending the liberties of people with whom they agree.
I have talked about this before, but I will say it again: for a civil liberties group to focus on defending the speech of those with whom it is most politically comfortable is a huge mistake. There are thousands of partisan or pseudo-partisan political groups out there. That is necessary and proper in a free society, and many of them do excellent work. But civil liberties groups that take sides on the political issues of the day are taking grave risks with their credibility. Someone has to serve as an honest broker. On campus, that job falls to FIRE—and we're proud to do it.
Permalink | E-mail comments | Posted by Robert Shibley on March 12, 2010, at 3:32 PM
Will Creeley Speaking at the National College Media Advisers Convention
March 12, 2010
FIRE Director of Legal and Public Advocacy Will Creeley will be giving a presentation entitled "Know Your Rights: An Introduction to Freedom of Expression and College Media" at the College Media Advisers convention in New York City this Sunday, March 14. The speech will take place in the Gilbert Room at the Marriott Marquis from 4:30 - 5:30 p.m. The CMA convention is an occasion for student journalists from around the country to gather together for three days and attend over 200 educational sessions, hear inspirational keynote addresses from media professionals, and participate in a trade show.
If you're attending the CMA convention, be sure to check out Will's speech and drop in on FIRE's booth.
Permalink | E-mail comments | Posted by Erin Osovets on March 12, 2010, at 2:54 PM
Victory for Freedom of the Press: UC San Diego Ends Unconstitutional Funding Freeze
March 11, 2010
Last night, the student government of the University of California, San Diego (UCSD) voted to end an ongoing moratorium on funding for student media. The vote restores funding for student media organizations and makes no changes to the current policy governing student media. FIRE has been working with student media to end the funding freeze.
It is far past time that the unconstitutional funding freeze, which was unilaterally enacted on February 18 by Utsav Gupta, President of the Associated Students of UCSD (UCSD's student government), was lifted. Controversy over a party invitation for an off-campus event called the "Compton Cookout" simply does not justify unconstitutional censorship.
FIRE condemned the media shutdown, which denied funding to 33 student media organizations, in a letter sent last month to Gupta and UCSD Chancellor Marye Anne Fox. FIRE's letter pointed out that these actions violate the constitutional rights of the organizations involved, not least because the student government is an agent of UCSD and is thus bound by the First Amendment. The American Civil Liberties Union of San Diego & Imperial Counties and the Student Press Law Center also denounced the freeze, and a Facebook group opposing the mass censorship currently has more than 1,500 members.
The invitation for the February 15 party, which first appeared on social networking site Facebook, celebrated racial stereotypes, asked female partygoers to dress as "ghetto chicks," and invited partygoers to "experience the various elements of life in the ghetto." As controversy roiled campus in the week following the invitation's publication, student media organization The Koala broadcast a defense of the party on UCSD's Student Run Television (SRTV), including language that many persons on campus found highly offensive. In response, Gupta took immediate action to shut down the broadcast and then the entire station because the broadcast was "deeply offensive and hurtful."
As of yet, no disciplinary charges have been filed against either the students associated with the party invitation or members of The Koala, despite calls for investigation and punishment by students, faculty, and members of the California legislature. Chancellor Fox and other UCSD administrators promised "aggressive investigations" into possible disciplinary violations. FIRE warned UCSD that punishing students for protected speech would violate the First Amendment in a separate letter.
FIRE will still be monitoring the situation at UCSD closely, as we fear that more attempts at censorship may yet be made, but there's no denying that this vote is a big victory for freedom of the press on UCSD's campus. As Will said in today's press release: "The answer to controversial speech must always be more speech, and never censorship. Hopefully, UCSD's student government has now learned that shutting down the media in a time of crisis is the hallmark of an illiberal dictatorship, not American democracy."
Permalink | E-mail comments | Posted by Robert Shibley on March 11, 2010, at 5:03 PM
'Columbia Spectator' Examines Student Rights at Columbia
March 11, 2010
A reflective opinion piece in the Columbia Spectator, published yesterday by student Derek Turner, examines the state of student rights at Columbia University and asks important questions about the range of rights and decision-making authority students should reasonably expect at Columbia. It is always a worthwhile exercise to assess whether one's university is delivering on the promises it has made to students and faculty to lure them to campus, or whether the school's administration is instead failing to meet the legitimate expectations it has created. Moreover, the article is timely in that Columbia students have recently sought to make their voices heard on campus issues such as gender-neutral housing, the university calendar, and smoking bans on campus, as the article discusses.
Turner writes:
As undergraduates at Columbia, we pay a lot of money to be part of the system here. Though we begin our relationship with this school as ambitious teenagers begging to be let in, we soon switch roles and start receiving requests for payment. We pay them and continue with our education. But what does that payment mean? Is it simply the transaction to get the product of a Columbia diploma, or is it the beginning of an investment? Are we not part of the institution as students here?
Granted, we don't necessarily pay for all the costs of our education, but that doesn't mean that we get this education for free. We're all making a significant investment by being here. So what does that mean? To me, I think that means that we have some authority.
Turner asks important questions about student rights and expectations at Columbia University and elsewhere, and about the nature of a student's relationship with his or her university. This passage is a useful reminder of the need to hold colleges and universities to the commitments they make in stated school policy with regard to student and faculty rights. The need for such accountability is especially important at private institutions, which are not legally bound by the Bill of Rights. At private colleges and universities, student and faculty rights, including the right to free speech, are defined by the school's promises in recruiting materials, student and faculty codes of conduct and handbooks, and other stated policy. Students and faculty deserve to see their institution fulfill all of its promises, such that the campus community meets the expectations the college has created.
Sadly, this is not the case at Columbia with respect to the university's stated commitments to freedom of speech. Columbia expressly promises robust speech rights on its campus, stating:
While the University as a private institution is not subject to the Constitutional provisions on free speech and due process of law, the University by its nature is dedicated to the free expression of ideas and to evenhanded and fair dealing with all with whom it conducts its affairs.
Yet one look at Columbia's Spotlight page belies this promised dedication to free speech. The university's speech codes earn it a "red-light" rating in Spotlight, given to those schools that maintain at least one policy that both clearly and substantially restricts freedom of speech. (For a policy-by-policy analysis of Columbia's speech codes, see Sam's entry from last year's "State of Free Speech on Campus" series.) Additionally, the high number of FIRE cases at Columbia over the years, in which the university has repeatedly demonstrated a lack of respect for the individual rights of its students and faculty, make clear that Columbia has not taken its commitments seriously enough or given them the priority they deserve. As such, articles like Turner's, and the student awareness and engagement they reveal, are necessary to keep the pressure on the Columbia administration so that it may eventually live up to its worthy promises.
Permalink | E-mail comments | Posted by Azhar Majeed on March 11, 2010, at 2:30 PM
In 'Pajamas Media,' FIRE's Robert Shibley Criticizes Censorship of 'Hate Speech' at UCSD
March 11, 2010
Today in Pajamas Media, FIRE Vice President Robert Shibley addresses the questionable effects of efforts to silence "hate speech" at the University of California, San Diego (UCSD), rather than let it be judged in the harsh light of the marketplace of ideas.
Here's his brief rundown of the controversy:
The impetus for the turmoil is the "Compton Cookout," a "ghetto"-themed off-campus party involving a Las Vegas-based African American comedian who calls himself "Jiggaboo Jones." The controversial party, held last month to "celebrate" Black History Month, was followed by the reported use of a racial slur on UCSD's student television station, the hanging of a noose in the library, and the placement of a "Klan-style" pillowcase on a campus statue of Dr. Seuss, of all people.FIRE and the ACLU of San Diego & Imperial Counties have repeatedly condemned Gupta's censorship as unconstitutional. But putting the Constitution aside for a moment (which Gupta has done anyway), is such a response good medicine for a community hurting for a real dialogue about the difficulties of race relations at UCSD? Does not having to see or hear the bilious statements of real racists in our midst make us any safer? Cui bono? Robert takes a story from FIRE Co-founder and Chairman Harvey Silverglate to explain how UCSD loses when it sweeps such speech under the rug:In response, UCSD has attempted to silence the "hate speech" on the grounds that it makes other students scared or uncomfortable. Associate Students President Utsav Gupta, apparently with the full backing of UCSD administrators, has frozen funding to 33 campus media outlets in order to silence one of them for making an offensive comment about the reaction to the "Compton Cookout" party on the student-run TV station. While no recording of the statement seems to exist, Kris Gregorian, editor in chief of the student "shock humor" publication The Koala, reportedly called those objecting to the party "ungrateful ni**ers."
It remains to be seen just how costly a lesson this will be for the university. Read the rest of Robert's article here, and visit our case page to learn more about FIRE's fight against censorship at UCSD, and how you can help.As a young lawyer for the Massachusetts ACLU, FIRE Co-founder and Chairman Harvey Silverglate was called upon to defend a group of neo-Nazis who had committed no crime. He did so successfully, despite the group's refusal to say even a word to him throughout the process because he is Jewish. It's hard for me to imagine a more harrowing experience to have as a civil liberties attorney than to be called upon to defend those who, if they had the power to put their ideas into practice, would kill you. I therefore put a great deal of stock in what Harvey says about the ill wisdom of silencing hateful speech: "If there are Nazis in the room, I want to know who they are so that I can keep an eye on them."
If racist speech is censored rather than exposed, it's hard to know who the racists are — and harder still to demonstrate the falsity of their ideas. Freedom of speech is what makes this awareness possible. On the other hand, censoring racist speech amounts to nothing more than a cover-up.
Permalink | E-mail comments | Posted by Peter Bonilla on March 11, 2010, at 12:06 PM
In Battling Racism, UC San Diego Must Not Follow the University of Delaware's Example
March 10, 2010
While much of the University of California, San Diego's (UCSD's) campus media remains under the deep freeze imposed by Associated Students of UCSD President Utsav Gupta nearly three weeks ago in the wake of racially-tinged incidents there, news is being made at UCSD on other fronts.
A recent letter to the campus from UCSD Chancellor Marye Anne Fox announces that she and Black Student Union co-chairs David Ritcherson and Fnann Keflezighi have "signed a mutual agreement that demonstrates our joint commitment to improve the overall campus climate for everyone." While Fox's letter gives little indication about what forthcoming improvements might look like, UCSD's "Battle the Hate" website, which contains a "Resources" link to the website of Wellesley Centers for Women Associate Director Peggy McIntosh, may offer a glimpse.
McIntosh is the founder and co-director of the National SEED (Seeking Education Equity & Diversity) Project on Inclusive Curriculum, which "helps teachers create their own year-long, school-based seminars on making school climates, K-12 curricula, and teaching methods more gender fair and multi-culturally equitable." Her text entitled "White Privilege: Unpacking the Invisible Knapsack" was employed by the University of Delaware, which recommended it to students in its Residence Life program (before it was removed from ResLife's website in late 2007). The portion excerpted by ResLife was part of an exercise aimed at getting white students to think about what they take for granted as part of their "majority" culture, such as being able "to go into a music shop and count on finding the music of my race represented."
As followers of FIRE know, using materials like McIntosh's, Delaware's program went to appalling lengths to force its viewpoints on the 7,000 students in the university's residence hall system, publicly shaming students who didn't hold what the ResLife program deemed to be appropriate viewpoints - even on such entirely private matters as relationships and sexuality.
We hope UCSD is not planning something similar.
To be sure, McIntosh's program can be used by universities in both constitutional and unconstitutional ways. UCSD must ensure that, in its work to address the racial climate on campus, it does not inadvertently take a page from Delaware's disgraced playbook by forcing its students into adopting pre-approved viewpoints as a condition of attending class or living in university housing. To do so would violate the First Amendment right to freedom of conscience that UCSD, as a public institution, must guarantee its students.
Permalink | E-mail comments | Posted by Peter Bonilla on March 10, 2010, at 5:24 PM
Apply for FIRE’s Summer Internship Program!
March 10, 2010
Undergraduates at American colleges and universities with an interest in defending individual rights in higher education are invited to apply to FIRE's 2010 undergraduate summer internship program.
The internship will begin on June 7, 2010, and end on August 13, 2010. Interns will have the opportunity to work with FIRE's Campus Freedom Network, learn how to defend liberty on their campuses, and conduct research for FIRE's individual rights defense and education programs. Additionally, interns will participate in seminars with experts on free speech and will enjoy substantial writing opportunities.
Dynamic, energetic, responsible, and versatile students who possess an interest in FIRE's mission and work are encouraged to apply. Focus, organization, and excellent writing skills are expected of all applicants. Interested students should submit a cover letter, résumé, and writing sample. Please mail, fax, or e-mail application packages to FIRE's office at:
FIRE
Attn: Internship Coordinator
601 Walnut Street, Suite 510
Philadelphia, PA 19106
Fax: (215) 717-3440
E-mail: internships@thefire.org
The deadline for application is March 31.
Permalink | E-mail comments | Posted by Luke Sheahan on March 10, 2010, at 10:20 AM
'Southwestern Sun' Keeping Heat on SWC Administration
March 9, 2010
Despite all the attention focused on the state of affairs at the University of California, San Diego, which languishes under a student media freeze amidst a series of racially charged incidents, FIRE hasn't forgotten about the serious fight for free speech going on nearby at Southwestern College (SWC). SWC's students and faculty aren't forgetting anytime soon, either, as shown most recently by a recent slate of articles in the Southwestern Sun student newspaper.
The Sun's reporting gives a broad and deep look at the current climate at SWC, reporting on the recent faculty senate survey giving overwhelmingly failing marks to SWC Superintendent/President Raj K. Chopra (which I've also written about in depth here), the SWC accreditor's decision to place the college on probation (which my colleague Adam Kissel has discussed here), faculty-led efforts to recall three of SWC's trustees, and the ever-present abomination of SWC's "free speech patio," the emblem of the SWC administration's attempts to declare more than 95% of the public campus to be non-public.
SWC's tiny free speech area makes an appearance in one article about various efforts to collect signatures for the recall effort and the inconsistent enforcement of SWC free speech regulations. As Sean Campbell, who previously co-authored an excellent article on Chopra's tenure at SWC, reports for the Sun:
A small group of Southwestern College faculty, students and community members celebrated Martin Luther King Day with an act of civil disobedience to protest free speech restrictions on campus. Protesters collected signatures to recall three governing board members who voted to cut spring classes.Need I say that if all discussions of the free speech patio transpired in such a civil manner, this might not have blown up into the national embarrassment that it has become for SWC? Or, better yet, the school could just abandon the concept altogether.
In defiance of the college's free speech policy, which limits petitioning to a covered patio in front of the cafeteria, protesters set up a table near the front door of the Student Center to register voters and collect recall signatures. They were met by a college employee who asked them to move to the Free Speech Area. Professor of Reading Robert Unger politely refused and said state and federal law allowed citizens to redress their government on public property. After a brief and calm discussion, the employee left.
At any rate, this is unfortunately only half the story, as this successful demonstration followed the less successful efforts of another community member to do the same. Campbell continues:
Six days earlier, on the first day of classes for the spring semester, Nickolas Furr, a local writer and blogger, did not receive the same treatment. He was collecting signatures for the same campaign when he said he was confronted by a campus employee who claimed to have the authority to relegate Furr's petitioning to the Free Speech Area.Also not helping things is interim student activities coordinator James Bond, who seems to be dispensing his authority with anything but 007-like coherence:
"I was lied to," said Furr. "And then ordered to move."
Interim Student Activities Coordinator James Bond said the faculty members running the petition campaign had to fill out a registration form and were allowed to collect signatures outside the free speech zone for unknown reasons. Bond was the campus employee who confronted Furr six days earlier, he said, on order of a superior that he declined to name. He said the same thing happened when the faculty set up their signature table, but this time the administrator said to leave the faculty alone and only make them fill out a registration form. He insisted Furr was not being singled out. Bond said he gets calls from administrators, campus police, students and even some faculty when strangers come to campus seeking signatures.Glad we could clear that up, Mr. Bond.
"It's not Nick," said Bond. "If anybody is out there filling petitions, I will find out what they are doing, get their information, and either let them stay, they'll move them, or they'll have to do it another day."
More pointedly, in an open letter to SWC Vice President Nicholas Alioto, SWC Professor Dinorah Guadina-Costa—one of the SWC professors suspended for their presence at an October 22 rally—continues to challenge both SWC's free speech policy and SWC's allegations against the faculty:
You characterize the student movement to the 100 building as the "march [I] encouraged and provoked" and say that I "created an on-campus safety emergency for the District, its police officers and students." This is neither a fair nor accurate recounting of what happened. Many witnesses have come forward to say what pictures in the Southwestern Sun corroborate. I did nothing but walk with student to the 100 building and ask the police officers lined up to block our path to permit us to pass. They responded that they would not and they were "just following orders." There is absolutely no evidence that any confrontation occurred or that I was an "active participant in efforts to cross the police line to enter the 100 building." There is absolutely no evidence that I posted any danger to police officers or individuals working in and around the 100 building. I am a 55-year-old woman and am 5 feet tall. I have been a teacher all of my adult life and have worked at Southwestern college for over 19 years. My colleagues and I are long-time teachers committed to non-violence and at no time did any of us pose any danger to police officers or individuals working in and around the 100 building.In a separate editorial, the Sun also opens up for the first time about the difficulties the Sun has had with the SWC administration. After noting that Alioto "froze Sun budget lines and would not allow the payment of any invoices," the Sun writes that
[...]
In your letter [of reprimand], you state "the District fully respects and supports freedom of expression and worked closely with the ASO to coordinate the October 22 rally."
If the district respected our rights to freedom of expression, it would not require an unlawful and unconstitutional permit for its expression. It would not unlawfully limit free expression to a small patio beside the bookstore where those speaking could not be heard.
Alioto called our adviser a liar and deceitful when he challenged the VP's actions. Not one to admit a mistake gracefully, Alioto compounded matters at the last board meeting when he let VP of Human Resources Michael Kearns and about a dozen other members of the audience know exactly what he thought. While Trustee Nick Aguilar was speaking to reassigned time and discussing the adviser's job, Alioto blurted out "That guy's a fucking idiot!"Someone might consider sending Alioto a copy of Dale Carnegie's How to Win Friends and Influence People. He doesn't seem to have been alone playing bad cop with the Sun, either; the paper also notes that President Chopra has previously berated Sun staffers, as well.
Speaking of Chopra, FIRE and many others have pointed out that, if he wants to reverse the collapse in confidence in his leadership among the faculty and staff of SWC, Chopra can—and must—take a strong stand in favor of free speech, and demonstrate respect for the input of his faculty and staff. Doing so can at least begin to undo the "culture of fear and intimidation" that is described in SWC's accreditation report and overwhelmingly evident in the faculty senate survey.
Does he have any interest in doing this at all? If the Sun's account of his brief appearance at a meeting following the report's release is accurate, I would guess the answer is no.
[Chopra] called a "town meeting" — a debriefing for the campus community required by WASC - to announce the findings and answer questions. His performance borders on dereliction of duty. He spent barely four minutes talking about the WASC report, a patronizing little speech where he urged college employees to regard the findings as a "glass half full." Socrates was once given a glass half full, too, only it was half full of hemlock. Chopra's perfunctory "briefing" and call for teamwork and better communication ended with a classic Chopra moment. Asked by Professor [Jackie] Thomas how she could trust that he was committed to improving the campus climate, Chopra, who had already sat down, dismissed her question with a backhanded wave off gesture that was part "whatever" and part "get screwed."Discouraging to say the least, but if there's a silver lining to be found here, it's that at least Chopra's "get screwed" gesture won't be nearly enough to keep the Southwestern Sun away.
Permalink | E-mail comments | Posted by Peter Bonilla on March 9, 2010, at 3:05 PM
Greg Speaking at UC Berkeley Tonight
March 9, 2010
FIRE President Greg Lukianoff will be speaking this evening at the University of California, Berkeley. Greg's speech, which is co-sponsored by the The Patriot Group and Students for Liberty, will begin at 7 PM in Room 100 of the Genetics and Plant Biology Building. The event is free and open to the public. For more information on the speech and other upcoming appearances on campus by FIRE staffers, check out FIRE's Calendar of Events.
Permalink | E-mail comments | Posted by Claire Jenkins on March 9, 2010, at 2:57 PM
33% of Faculty But Only 8% of Administrators See Pay Cuts in 2009-10
March 9, 2010
FIRE has often lamented the rise of the college administrative class at the expense of the faculty. The huge increase in the number of administrators in just a few decades has given colleges not only a greater ability to regulate and monitor student expression, but also the need to do so in order to justify the increase in the number of positions. This leads to situations like the University of Delaware's massive Residence Life thought reform program, where residence life administrators decided to "teach" Delaware students about controversial topics like diversity, sexuality, and environmentalism without any real input from the faculty.
Unfortunately, there's more bad news for the faculty today, as a report from the College and University Professional Association for Human Resources reveals that while 32.6% of faculty members saw pay cuts for 2009-10, only 8.3% of administrators saw their pay drop. Pay cuts are difficult for anyone to accept, and I don't mean to minimize the disruptions suffered by that 8.3% of administrators who did see pay cuts. However, this serves as evidence that the emphasis of the modern university seems more and more to be on regulating students (not just their behavior, but their expression) and correspondingly less on educating them, at least in the traditional sense of the university as a marketplace of ideas where credentialed, highly educated teachers educate through interactions with young scholars. If this trend continues, such interactions will get rarer and rarer, and students will be poorer for it.
Permalink | E-mail comments | Posted by Robert Shibley on March 9, 2010, at 11:20 AM
Society for Professional Journalists Unveils 'Reporter's Guide to FERPA'
March 8, 2010
The Society for Professional Journalists has published a usefully thorough examination of the Family Education Rights and Privacy Act (FERPA), the 1974 federal law governing access to student educational and disciplinary records. Working in conjunction with the Georgia First Amendment Foundation (GFAF), SPJ's report details both how FERPA works—that is, what materials it does and does not cover and to whom its protections apply—and how it fails. Specifically, SPJ argues that FERPA "has been twisted beyond recognition, keeping school lunch menus, graduation honors and athletic travel records secret," and implores both student journalists and their professional counterparts to push back against the increasing misuse of FERPA as a one-size-fits-all justification for hiding public records. SPJ's report is designed to "help journalists and citizens understand their rights to education records and not allow school officials to hide important public information while still protecting legitimate student privacy."
SPJ's report directly addresses a concern we've covered here on The Torch before: namely, that investigative journalism on campus is being stymied by universities giving FERPA a needlessly expansive reading in order to prevent the release of unflattering information. For example, last summer, Azhar highlighted an opinion piece in Ohio State University student newspaper The Lantern that raised this issue, following an illuminating May 2009 report in The Columbus Dispatch documenting the ways in which collegiate athletic departments invoke FERPA to deflect inquiries into department practices. As Azhar wrote:
FERPA was enacted to provide students with confidentiality in their educational records, including student disciplinary records, and to provide students and their parents with access to those records. It is meant to ensure that a student's educational records are not disclosed to a third party, the press, or the general public without the student's consent. However, as the Lantern editorial discusses, colleges and universities have used FERPA to withhold many institutional records arguably outside the scope of FERPA out of the public realm:
According to former U.S. Sen. James L. Buckley, FERPA was intended to protect students' academic records from public publishing and scrutiny. This law, which theoretically leaves it up to the students to control who can see their transcripts and GPA, has been used to censor a wide range of information, from NCAA violations to information about comp'd sports tickets.
The result, according to the article, is that journalists are too often frustrated in their attempts to expose institutional policy and practice, including the use of public funds, to the public. Universities are therefore able to hide behind FERPA rather than face public scrutiny for their actions.
FIRE, SPJ, and GFAF are not the only groups sounding the alarm about FERPA's misuse. The Student Press Law Center (SPLC) has repeatedly issued press releases in recent years warning that FERPA's expansion threatens accountability and transparency, making the public assessment of the performance of our nation's public schools that much harder.
We're pleased that SPJ has lent its voice to the growing cry against FERPA's misuse, and we hope that student journalists (and CFN members!) will check out SPJ's ten ideas for FERPA-related journalism.
Permalink | E-mail comments | Posted by William Creeley on March 8, 2010, at 4:56 PM
Student Artwork Too 'Controversial' for Southwestern College
March 8, 2010
The blog Save Our Southwestern College reports that a student at Southwestern College (SWC) in Chula Vista, California, "was prevented from rendering her drawing of the three professors suspended this past October" because "[c]ollege authorities ... found it controversial and said that it didn't relate to the festival's theme of Women's History Month." FIRE is investigating the case. The drawing, given below, portrays three professors who were banned from campus and suspended because they were with students who were protesting beyond the college's unconstitutional free speech zone. According to Save Our Southwestern College, the student artist said: "The events that happened last October until today were and are still a part of women's history. Professor [Dinorah Guadiana-]Costa, I, and a lot of female students were there! That's a slap to a lot of people's faces."
Festival Theme: "Writing Women Back Into History"
Please provide a brief description of your proposed image and how you will incorporate the festival theme in your art piece (Suggested and preferred subjects are those relevant to this year[']s theme). Replicas of masterpieces are permitted. Artwork must be appropriate for public viewing. No nudity, symbols or words to be used as advertising or pieces associated with major controversy. THE SPONSORS & ARTISTS ARE PARTNERS AT THE FESTIVAL. It is important your subject matter be something that the sponsor will consider a positive partnership. [Original emphases removed; emphasis added.]
Apparently, the artwork about the suspension of the three professors failed because the suspensions were counted as "major controversy"—as though women's issues throughout history have not involved major controversies?
Besides, as for keeping to the festival theme, I would really like someone to explain to me how these two drawings from the first SWC festival in 2007 have anything more to do with women's history than the drawing above:
The selective censorship of this year's artwork is both appalling and laughable.
Meanwhile, the college purportedly is planning to revise its constitutionally infirm free speech policy, but more than four months after FIRE challenged the policy in a letter to wildly unpopular Superintendent/President Raj K. Chopra, it appears that the college has made no progress. Every day without a revised policy is a further infringement on the rights of members of the SWC community, bringing SWC closer to a First Amendment lawsuit.
When will Southwestern College learn to start respecting the First Amendment on campus? Maybe it will have to take a federal judge or some new leadership.
Permalink | E-mail comments | Posted by Adam Kissel on March 8, 2010, at 3:14 PM
Rights in the News: Greg's New Book Project Announced as Battle For Free Speech Continues at UCSD
March 6, 2010
In a week when a college football coach praised the mass theft of a campus newspaper as a productive "team-building exercise," and a blanket funding freeze of student fee-funded media continues at UC San Diego over the protests of just about everyone who's not Associated Students of UCSD President Utsav Gupta, the announcement of FIRE President Greg Lukianoff's new book project is aptly timed, to say the least.
On his blog at The Huffington Post and here at The Torch, Greg lays out his thesis:
In my opinion, higher education is supposed to work as a sort of "sophistication machine" for our society. That is, it is supposed to help us produce a citizenry with a deep, nuanced, complex, and multifaceted understanding of the issues confronting our nation and world. Many critics of higher education point to ideological imbalance within the faculty, grade inflation and diminishing academic rigor, or the increased corporatization of the university as factors that prevent it from fulfilling this crucial function. These are all problems worth investigating. But I believe the most important factor interfering with the success and credibility of higher education is the continuing maintenance of campus speech codes and other policies and practices designed to discourage and even punish free speech and meaningful dissent.
As Greg and others at FIRE have said time and again: With the rise and persistence of speech codes comes the phenomenon of "unlearning liberty" and the slow fizzling of the generation of American minds on which we're depending to solve the major issues of the twenty-first century. We're not alone at FIRE in saying that we can't wait for the book. Read here for more about Greg's exciting new endeavor.
Elsewhere this week, Samantha has a terrific letter in Lehigh University's paper The Brown & White, correcting a few of Lehigh's (to put it generously) misunderstandings about free speech on campus and FIRE's ratings methodology. Sam has nicer things to say about William & Mary, which—as The Virginia Informer reported this week—eliminated its controversial bias reporting system, emphasizing its status as a "green-light" institution.
Those of you who have been following our coverage of the free speech crisis at UC San Diego are aware of the seriousness of the problem there, as ASUCSD President Gupta's freezing of all college media persists, and a showdown over the First Amendment looks more likely by the day. (The Daily Nexus at UC Santa Barbara is one of the latest to make sense on the issue.) We'll keep you posted, but if you want to add your voice to the growing chorus against censorship at UCSD, you can do so here.
Permalink | E-mail comments | Posted by Peter Bonilla on March 6, 2010, at 3:17 PM
Johns Hopkins Student Government Association Asks President to Defend Free Speech
March 6, 2010
Promising news recently from Red Alert school Johns Hopkins University. Marc Perkins, President of the Student Government Association, wrote to Johns Hopkins President Ronald Daniels last month on behalf of the Undergraduate Student Government Association to ask that he uphold free speech rights at Johns Hopkins.
His letter begins by asking that President Daniels support Maryland H.B. 677/S.B. 805, the Free Speech at Nonpublic Institutions of Higher Education Bill. If enacted, the bill would function much like the Leonard Law in California, requiring private institutions to afford their students free speech rights as long as the school does not have an overriding religious purpose.
Perkins cites Hopkins' deplorable civility code that, in his words, "allows the university to punish students for merely expressing views that are controversial." He then states that such infringement of students' rights "hurts the cause of academic freedom at our university and has a chilling effect upon all forms of speech." Perkins goes on to describe the effects of the bill, which would essentially require secular private institutions to uphold the First Amendment rights of students, just as public institutions are bound by law to do. Perkins refers to the Undergraduate Conduct Code that promises to "protect the university as a forum for the free expression of ideas" and asks that Daniels support the bill so that the university will be held legally accountable to keep that promise. Read the full letter here.
While FIRE takes no position on legislation—even on such bills affecting students' free speech rights—we are heartened that the student government at Johns Hopkins is taking seriously threats to their free speech rights as promised to them by Hopkins' own policies. Whatever President Daniels' decision on Maryland H.B. 677/S.B. 805, we hope that he rescinds Hopkins' civility code, as we asked earlier this year, and we are able at long last to remove Hopkins from our Red Alert list.
As Torch readers know, Johns Hopkins received its Red Alert status after it refused to admit wrongdoing for its draconian punishment of a student for a pair of Facebook flyers, and for later instituting a repressive civility code.
The incident began when Justin Park, a Hopkins student, posted a flyer on Facebook advertising his fraternity's "Halloween in the Hood" party. Students found his flyer offensive and the student was contacted by Director of Greek Affairs Robert Turning. The student removed the advertisement but after receiving inquiries about whether the party was still on, he posted a second advertisement. Associate Dean of Students Dorothy Sheppard sent the student a letter alleging that the advertisements "contained offensive racial stereotyping" and that "there were offensive decorations at the party." He was charged with "failing to respect the rights of others and to refrain from behavior that impairs the university's purpose or its reputation in the community," violating the "university's anti-harassment policy," "failure to comply with the directions of a university administrator," "conduct or a pattern of conduct that harasses a person or a group," and "intimidation."
Following a hearing where he was found responsible for all charges, Park was given a one year suspension, sentenced to 300 hours of community service, assigned 12 books and required to write a reflection paper on each, and required to attend a workshop on diversity and race relations. FIRE wrote two letters to then Hopkins president William Brody, asking him to vacate the charges against the student, as they violated Hopkins' own promises of free expression to its students, and issued two press releases inciting intense public outrage over the draconian punishments. On appeal, Park's punishment was reduced, but not rescinded.
Then, to follow up this egregious act of censorship, President Brody instituted a civility policy stating, "Rude, disrespectful behavior is unwelcome and will not be tolerated." He further defended the policy, stating in an article in The JHU Gazette that speech that is "tasteless" or that breaches Hopkins' standards of "civility" is prohibited. FIRE again wrote to President Brody, this time asking him to revoke the policy and respect his students' rights. We wrote:
Johns Hopkins is a private institution, but a private institution that claims to cherish the right to free expression cannot, in good conscience, extend fewer rights and freedoms to its students than a public institution, bound by the Constitution. Do students at Johns Hopkins truly enjoy fewer protections of expression than students at Maryland's community colleges? To restrict freedom of speech is to create a stifled and intellectually bereft environment-the very antithesis of what a university like Johns Hopkins claims to be.In 2007, Johns Hopkins became one of the inaugural schools on FIRE's Red Alert list, for the worst violators of students' rights, appearing in ads in two consecutive issues of U.S. News & World Report's "Best Colleges" edition.
Permalink | E-mail comments | Posted by Luke Sheahan on March 6, 2010, at 12:02 PM