Dear Professor Griffith,
Thank you, and the rest of the ad hoc committee, for your diligent work to improve the campus free speech and assembly policy. The Foundation for Individual Rights in Education (FIRE) has been extremely heartened by your commitment, patience, and receptiveness. The current draft policy is a significant improvement over the last draft policy and over the plainly unconstitutional policy that West Virginia University had at the beginning of this year. We are extremely pleased with the progress that has been made . Unfortunately, there are still potential constitutional problems with the policy. Also, as the policy still bases its restrictions on the number of students involved and not on their behavior, we cannot endorse this policy despite its many improvements.
We recognize that it takes commitment and courage to have a truly open campus, and to that end, FIRE will be developing a model free speech policy for colleges and universities. When this project is completed, FIRE will be submitting its model policy for consideration to universities across the country, including WVU.
If you would like a full review of our response to, and the media’s treatment of, the previous policies, we encourage you to go to our website at www.thefire.org. While many of our most important concerns were addressed in the current version of the policy, we still have a few important points to address:
1. The policy should be behavior-based, not based on the size of demonstrations.
In order to be acceptable, a policy regulating expressive activity and assembly should be based on students’ behavior, not on the size or scale of their activity. In our most recent letter we said: “FIRE recommends that WVU fully implement the language already in the draft policy. The preamble states that expressive activity must be allowed ‘until or unless they substantially disrupt regular or essential operations of the University or significantly infringe upon the rights of others, particularly the right to listen to a speech or lecture.’” Instead of implementing this clause, the language was eliminated from the latest policy. We still believe that this language should be the guiding principle of any university policy.
Contrary to this principle, the current draft policy states, ”Picketing may occur with 30 participants or less on the grounds outside of University buildings.” It is unclear what “picketing” means, but we can infer from the policy as a whole that it means vocal protest, possibly involving signs–what is usually defined as a “demonstration.” It is further unclear if picketing by more than 30 students can occur anywhere else on campus . I mplicitly a demonstration of 30 or more could only be held in the free speech zones. Therefore, unless the intention was to eliminate demonstrations of 31 or more altogether (which is not apparent), the policy still requires demonstrations of 31 or more participants to go to the free speech zones.
As we stated before, the proposal by a school of 22,000 to regulate demonstrations of more than 30 students is distressing and unnecessary. Furthermore, under the U.S. Constitution, state actors (such as WVU) are only allowed to impose reasonable “time, place, and manner restrictions” on demonstrations on public university campuses, see Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). Because WVU’s interest in restricting groups beyond a certain size is to prevent disruption of University activities, any restriction must be “narrowly tailored,” and go rationally to the cause of the potential disruption. There is no logical reason to believe that 30 students are not disruptive while 31 necessarily are. The number of students peaceably assembled is not the correct way to gauge disruptiveness and remains vulnerable to constitutional challenge. While the size of the demonstration may be a factor in considering when a gathering needs have time, place, and manner restrictions, it should not be determinative.
2. The policy still relies on free speech zones.
While we are pleased that the “free speech zone” part of the policy is far less oppressive and ripe for abuse then the original policy, we urge WVU to reconsider this part of the policy. WVU should try a policy in which demonstrations are permissible throughout the campus and are only subject to minimum time, place, and manner restrictions. Since peaceful and safe activity is all that would be permitted under the student conduct code, there is no reason to restrict expression any further. As we stated before, we think you will find that any concern you have about having an open campus will be more than offset by the benefits of the dynamic environment that is created when a university is unafraid to grant its students the freedom they deserve.
3. The policy needs clarification.
We join with the Christian Legal Society (CLS) in requesting that WVU clarify its existing rules and develop a comprehensive speech policy. This is important if WVU is to avoid the “chilling effect” of a vague code. Some examples of what needs to be clarified include the definition of “picketing” and that acceptable “speech activities” are not limited to the four activities listed. Speech activities take a wide variety of forms, from worship, to reading, to song, to private arguments. While CLS has been assured those “speech activities” not listed are allowed, this needs to be explicit in the code. Because there are too many “speech activities” to list and endorse, this section must state that the list is not intended to be exhaustive and that non-listed activities that do not violate other parts of the code are allowed.
Both the provision restricting students’ right to leaflet in the residence halls, and the provision restricting signs with sticks in University buildings, need clarification. These examples, along with the inconsistencies and ambiguities in the solicitation policy and the student misconduct policy, make for an uncertain environment. In order to guarantee an atmosphere of free discourse and expression, students must always be confident that their rights are clearly protected by all campus policies that relate to speech and expression.
It is important that WVU understand that, while greatly improved over the original version, the newly revised policy is still vulnerable to constitutional challenge. This is an inherent danger anytime a university tries to create blanket regulations regarding speech or assembly. While I will not speculate on the likely success of such a challenge, the best way to avoid it is to change the policy in the ways we have recommended. We strongly believe that implementing a more liberal policy will not only avoid potential costly litigation, but will demonstrate to the world that WVU is committed to the great principles of robust debate, intellectual inquiry, and respect for the dignity and rights of their students and faculty.
Thank you for your time, and please feel free to contact me if you have any questions.
Director of Legal and Public Advocacy
Foundation for Individual Rights in Education
West Virginia University