October 22, 2001
President Stephen Weber
San Diego State University
5500 Campanile Drive
San Diego, California 92182
Re: Zewdalem Kebede
Dear President Weber:
As you can see from the list of our Directors and Board of Advisors, 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 the case of Zewdalem Kebede-freedom of speech and expression on America's college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.
I write to express our grave concern regarding the official retaliation against San Diego State University student Zewdalem Kebede following a heated discussion he had with a number of other students regarding the September 11 terrorist attacks. In light of this national crisis, it is crucially important, now more than ever, that we stand by the ideals of our Constitution and not abandon them to suppress views or modes of expression that we find offensive.
This is our understanding of the facts. On September 22, Mr. Kebede overheard a discussion in Arabic among three students who delighted in the success of the terrorist attacks against the United States. Kebede, who understands Arabic, was shocked, and he engaged the students in their own language to challenge their positions. When a fourth student joined the discussion, he asked if Kebede was threatening the students. He replied that he was not, and the discussion ended. Kebede was suitably shocked to discover that he had been brought up on misconduct charges by the Center for Student Rights and Responsibilities.
In a letter dated September 25, a University Judicial Officer, Antionette Jones, accused Kebede of violating Title 5, Section 41301 of the California Code of Regulations, which states:
Following procedures consonant with due process established pursuant to Section 41304, any student of a campus may be expelled, suspended, placed on probation or given a lesser sanction for one or more of the following causes which must be campus related:
(k) Abusive behavior directed toward, or hazing of, a member of the campus community.
Zewdalem Kebede was forced to report to the office to explain his actions. He submitted a letter in which he denied taking any abusive action, and met with Jones privately. Subsequently, Jones admonished Kebede, and effectively placed him on probation, while claiming that this did not constitute "disciplinary action."
As you know, San Diego State University is a public university and therefore has an overarching legal obligation, in addition to its moral obligation, to ensure the First Amendment rights of its students. The use of the California Code to threaten expression and core political speech profoundly misrepresents the law. As should be obvious, no state code can trump the protections of the First Amendment. A definition of "abusive behavior" that includes heated political discussions on a college campus is irredeemably overbroad and vague. Further, the code appears directed at physically abusive conduct or hazing. Misapplying it to impassioned speech eviscerates the principles of free speech and robust discourse and opens the door to future abuse of student rights.
The application of this unconstitutional rule to only one side of a debate, in which the so-called victims outnumbered Mr. Kebede four to one, reveals a dangerous double standard on the part of the administration. The First Amendment exists, in part, to prevent the suppression of views that those in power dislike. While FIRE decries all attempts to silence students' point of view, the abuse of such rules to silence the core beliefs of some students over others is especially pernicious.
Zewdalem Kebede's right to speak applies even if his language was found to be emotional or fervent. The United States Supreme Court decided long ago, in Cohen v. California, 403 U.S. 15 (1971), that the expressive and emotive element of speech enjoys the full protection of the First Amendment. FIRE notes with irony that a University purporting to value diversity appears unable to tolerate diverse modes of discussion and debate, which differ profoundly from nation to nation or individual to individual. By this action, San Diego State University endangers speech on any topic that incites students feelings and emotions, leaving only the most sterile and innocuous topics safe for analysis and debate.
Accordingly, FIRE asks that San Diego State University:
1) Affirm that Zewdalem Kebede's opinions are fully protected under the First Amendment to the United States Constitution and that no device or contrivance will be used to circumvent those rights.
2) Guarantee that Kebede will receive no further retaliation for the expression of his constitutionally protected opinions on this or any other topic, past or present.
3) Expunge all derogatory information related to this incident from Kebede's records.
4) Pledge that the California Code of Regulations will never again be interpreted as interfering in any way with student's Constitutional rights, either by sanction or threat of sanction.
San Diego State University must understand that its disciplining of Kebede will not only remove any meaningful protection of the rights of your existing students and faculty, but also will result in a chilling effect across education as a whole. A university in which students and faculty have any fear of reprisal for discussing controversial topics is one that is rendered impotent to address society's most crucial issues.
FIRE hopes we are able to resolve this dispute discreetly and amicably. However, FIRE is committed to using all of its media and legal resources to support Zewdalem Kebede throughout this process to a just and moral conclusion. Please spare San Diego State University the embarrassment of fighting against the Bill of Rights by which it is legally and morally bound.
I look forward to hearing from you.
Sincerely,
Greg Lukianoff
Director of Legal and Public Advocacy
CC: Nancy Marlin, Provost and Vice President, Academic Affairs
James Kitchen, Vice President for Student Affairs
Marty Block, Student's Rights and Responsibilities
Antionette Jones, University Judicial Officer