ACLU-SD Calls on OCR Not to Investigate Free Speech at CSU-San Marcos

By November 30, 2011

Yesterday we wrote about our fight for free speech at California State University-San Marcos (CSUSM), where several students were investigated for their possible involvement with the satirical campus magazine The Koala. While CSUSM has now suspended all investigations following FIRE’s intervention, CSUSM faces the prospect of an investigation by the federal Department of Education’s Office for Civil Rights (OCR), after some students submitted a Title IX complaint about the publication. (OCR refused to share any portion of the complaint with FIRE when we requested it under the Freedom of Information Act.) We wrote to Assistant Secretary for Civil Rights Russlynn Ali yesterday, urging OCR to remember its obligations under the First Amendment.

The American Civil Liberties Union of San Diego & Imperial Counties (ACLU-SD) has stepped in as well, sending its own letter to OCR yesterday, making it clear that the magazine’s content is protected speech. ACLU-SD Legal Director David Blair-Loy’s argument in the letter against any claim of harassment arising from the simple presence of The Koala is quite convincing. Blair-Loy, like FIRE, emphasizes the centrality of the Supreme Court’s most relevant decision for analyzing cases like this one:

The distribution of a single periodical to a campus of over 9000 students with over 1500 employees cannot reasonably be said to deprive students of “access to the educational opportunities or benefits provided by the school” or “have the systemic effect of denying” students “equal access to an educational program or activity.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650, 652 (1999).

I encourage everyone to read the whole letter. We’re very glad to have the ACLU-SD’s assistance and support on this matter, and we hope OCR will resist the pressure to investigate CSUSM for meeting its responsibility to protect the speech of The Koala on campus.

Schools: California State University – San Marcos Cases: California State University – San Marcos: Disciplinary Investigation of Humor Magazine