FIRE Letter to GVSU President Mark Murray, April 6, 2005

By on April 6, 2005

April 6, 2005

President Mark A. Murray

Grand Valley State University

1 Campus Drive

Allendale, Michigan 49401

URGENT

Sent by U.S. Mail and Facsimile (616-331-3503)

Dear President Murray,

As you can see from our Directors and Board of Advisors, the Foundation
for Individual Rights in Education (FIRE) unites leaders in the fields
of civil rights and civil liberties, scholars, journalists, and public
intellectuals across the political and ideological spectrum on behalf
of liberty, legal equality, freedom of religion, academic freedom, due
process, and, in this case, freedom of speech and expression on
America’s college campuses. Our website, www.thefire.org, will
give you a greater sense of our identity and activities.

FIRE is profoundly concerned by Grand Valley State University’s
upcoming trial of the Grand Valley State University College Republicans
for holding an “affirmative action bake sale” on campus.
“Affirmative action bake sales” constitute a form of satirical
political protest that enjoys the fullest protection of the First
Amendment of the U.S. Constitution.  Respect for the dignity and
individuality of each member of GVSU’s student body demands the most
profound respect for your students’ freedom of expression—even when
some in the community might be offended by that expression.  As
you well know, if everyone could ban what he or she took offense to, we
all would be reduced to silence.

This is our understanding of the facts, based on reports and documents
provided by the College Republicans as well as published accounts of
the incident.  On March 21, 2005, the College Republicans held an
“affirmative action bake sale” protest at the Kirkhof Center on GVSU’s
campus.  These bake sale protests have become a widely used form of political parody directed against
affirmative action.  Protest organizers will typically display a
menu with satiric prices in which minority and/or female students are
charged less than white and/or male students for the same items.
In this case, the College Republicans listed a price for white males of
$2.00 per cupcake, with lower prices for women and racial
minorities.  The bake sales are intended to spark debate about
affirmative action policies, not to raise revenue, and aim to satirize
university policies that opponents of affirmative action believe
unfairly accord some groups more favorable treatment than others.
Members of the College Republicans report that they sold a grand total
of one cupcake during their controversial yet nonviolent protest.

After the protest, judicial referrals were filed with GVSU’s Student
Organization Review Board by at least five students.  These
students have charged the College Republicans with offenses including
the violation of Student Organization Manual and Student Code
regulations against discrimination; Student Code sections regulating
expression, protest, and association; and the University Discrimination
Clause.

As you are aware, parody and satire are important—indeed,
vital—components of political speech and are at the core of our
country’s honored traditions.  Protests that rely on satire—such
as the College Republicans’ affirmative action bake sale as well as
feminist “wage gap bake sales” that aim to protest the gap between men
and women’s average earnings—exist to challenge, to amuse, to provoke,
and even to offend.  We strongly encourage you to read the
landmark Supreme Court cases of Cohen v. California (1971) and Hustler
Magazine, Inc., et al., v. Jerry Falwell
(1988).  Taken together,
the precedents set by these cases protect even highly offensive
material, farce, profanity, and exaggeration, and they confirm that
parody and satire play essential roles in our society precisely because
they challenge our deepest assumptions and beliefs.

GVSU’s moral obligation to guarantee its students’ free speech rights
is clear; its legal obligation to uphold the First Amendment is
indisputable.  As a public university, GVSU has an overarching
legal obligation, in addition to its moral obligation, to ensure the
First Amendment rights of its students.  The College Republicans’
bake sale protest is a clear example of political parody, and the
complaining students’ reaction against it serves as an illuminating
example of why the U.S. Supreme Court has seen fit to so heavily
protect this type of expression.  The very point of the protest
was to parallel what the College Republicans view as discrimination in
college admissions through affirmative action policies.
Categorizing the “bake sale” as “discrimination” ignores—or willfully
misinterprets—the expressive purpose of the event.  Any punishment
of the College Republicans or its individual members for their
constitutionally protected expression would therefore be prohibited by
the U.S. Constitution.

Furthermore, at least one GVSU administrator is on record suggesting
that the real reason that the university is trying the students for
their political expression is that some people found it
“offensive.”  GVSU Director of Student Life Bob Stoll was quoted
in a March 25, 2005, article in The Grand Rapids Press as saying, “To
do something this offensive is not appropriate.”  Thankfully, the
First Amendment does not permit state officials to punish expression
merely because they deem it inappropriate or offensive.

A special function of the university as a whole is to serve as the
ultimate forum for free speech.  Any university serious about the
search for truth should be seeking, at all times, to expand open
discourse, to develop intellectual inquiry, and to engage and challenge
the way individuals think.  By putting the College Republicans on
trial for their expression, GVSU sends the message to its students that
speech is to be feared, monitored, and ultimately restrained if it is
deemed sufficiently controversial or “offensive.”  This message
stands in stark opposition to the values of higher education.
GVSU should remember, at all times, the U.S. Supreme Court’s timeless
expression of the important role of our universities in Sweezy v. New
Hampshire
(1957):

The essentiality of freedom in the community of American universities
is almost self-evident.  No one should underestimate the vital
role in a democracy that is played by those who guide and train our
youth.  To impose any strait jacket upon the intellectual leaders
in our colleges and universities would imperil the future of our
Nation.
  No field of education is so thoroughly comprehended by
man that new discoveries cannot yet be made…. Scholarship cannot
flourish in an atmosphere of suspicion and distrust.  Teachers and
students must always remain free to inquire, to study and to evaluate,
to gain new maturity and understanding; otherwise our civilization will
stagnate and die. [Emphasis added.]

Thus, GVSU’s enforcement of unconstitutional speech restrictions is
wholly misplaced at an institution preparing students to be engaged
citizens in a pluralistic democracy.

GVSU is not the only university that has attempted to shut down an
affirmative action bake sale or punish students for holding such a
protest on the grounds that it is “discriminatory.”  The
University of California at Irvine, the University of Colorado, and the
College of William & Mary have attempted to suppress affirmative
action bake sale protests on similar grounds.  FIRE intervened in
each of these cases and the institutions relented, realizing that an
attempt to silence this type of political protest would run afoul of
the First Amendment—and open the institution to legal liability.

FIRE is categorically committed to using its resources to see this
situation through to a just and moral conclusion that respects your
students’ First Amendment rights.  Please spare Grand Valley State
University the embarrassment of fighting against the Bill of Rights, by
which it is both legally and morally bound.  We urge GVSU to
cancel the scheduled trial and demonstrate that free speech is to be
celebrated, honored, and broadened—not feared, suppressed, and
restricted.  Let your students exercise their basic legal, moral,
and human rights; let them protest as their consciences dictate.
Because of the urgency of this matter and the impending trial of the
GVSU College Republicans, FIRE requests a response by 5 p.m. EDT on
April 7, 2005.

Sincerely,

Robert L. Shibley

Program Officer

cc:

Gayle R. Davis, Provost and Vice President for Academic Affairs, Grand Valley State University

Patricia Oldt, Vice President of Planning & Equity and Interim Affirmative Action Director, Grand Valley State University

Patricia Smith, Associate University Counsel for Complaints of Discrimination and Harassment, Grand Valley State University

Oliver Wilson, Dean of Multicultural Affairs, Grand Valley State University

Kyle Rausch

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Schools: Grand Valley State University