thefire.org

Binghamton's Social Work Department Strikes Again, Expelling Student Without Feeling the Need to Tell Him Why

February 9, 2010

A year after The Torch was so populated with eye-popping accounts of Binghamton University's (BU's) attempts to force graduate student Andre Massena out of its Masters of Social Work (MSW) program, the student newspaper the Binghamton Review lays bare the case of another MSW student, Michael Gutsell, caught in the crosswinds of the Department of Social Work's vague and unforgiving disciplinary system. Unfortunately, despite FIRE's appeals to the BU administration to apply basic fairness and respect for students' First Amendment rights to his case, Gutsell was expelled from the MSW program without knowing why, much less having a chance to properly defend himself against nebulous allegations.

Ostensibly, the grounds for the hearing that ultimately resulted in Gutsell's expulsion were rooted in two classroom incidents this past fall semester, which are difficult to chalk up as anything more than mere misunderstandings. The Review summarizes them as such:

The first occurred on October 27th, during a class with Professor Kevin Murphy. According to statements by Gutsell, Professor Murphy told the class that they were to reach a unanimous decision as to the content and format of their midterm exam. Once the class reached a consensus, they were informed that the exercise itself was their exam. Having tricked his students, Professor Murphy joked about them coming after him after class, to which Gutsell responded jokingly, "well just be careful when you start your car."
   
The second matter presented to the Advancement Committee was a story that Gutsell told during a November 17th meeting of Murphy's class. The topic being discussed was, according to Gutsell, "the docking of employee pay for infraction." Gutsell mentioned that in Ontario, where he once worked, it is illegal to dock an employee's pay unless that employee violated the law. He proceeded to tell a related story about an incident that occurred years earlier. "I said that an employer had tried to dock my pay for taking a pick-axe to a chair. It was my pick-axe but they couldn't prove it was me so they were unable to dock my pay," Gutsell wrote in a statement to the Office of Student Conduct (OSC). [Gutsell later stated that he was not the one who had hit the chair with the pick-axe anyway.]

Although this second incident was relevant to the class in which Gutsell described it, several students approached Murphy to say that Gutsell had made them feel uncomfortable and threatened. BU took their complaints seriously. Even though nobody had complained directly after the October 27 classroom incident, three days after the second classroom incident, Gutsell was contacted by the University Police, who were now investigating the October 27 classroom incident as a threat. Gutsell was shocked. When interviewed by the police, Professor Murphy brushed off the October 27 remarks and confirmed that Gutsell's "pick-axe" story had been relevant to the class discussion. The University Police closed its investigation; an investigation by BU's Office of Student Conduct likewise ended without charges. Even so, Gutsell was summoned to an "Advancement Hearing" on December 1 and interrogated about the two incidents, and on December 4 the Advancement Committee notified Gutsell it had recommended against his advancement (i.e., his continuation in the program), telling Gutsell that there "appears ... to be a significant discrepancy, at times, between the purported intention of your verbal behavior and the ways in which your verbal communications are perceived by others."

This "significant discrepancy" was something BU had tried to assert itself over earlier in the semester, by forcing Gutsell to sign a contract which placed vague and chilling restrictions on his speech. As per the contract the department made him sign in December, Gutsell was to seek improvement in, among other things, "[e]vidence of ability to build and maintain rapport with peers, instructors, colleagues, and clients—no reports from instructors or students that they are uncomfortable with you." (Emphasis added.) This ominous requirement left Gutsell exposed to false, unjustified, oversensitive, or malicious reports against him. Nonetheless, BU determined that Gutsell had complied satisfactorily with the contract, and continued his advancement at the end of October. The Review has more on the pins-and-needles culture whose sanctity Gutsell allegedly threatened:

Gutsell signed the contract in September after returning from medical leave last spring. Professors' concerns, including one subjective report about "rude comments" Gutsell made in class, were considered cause for the written plan and a subsequent "trial period" this fall, during which Gutsell's performance would be evaluated by his professors and department chair Laura Bronstein before he would be allowed to advance in the program. One particular incident, says Gutsell, in particularly [sic] caused a peculiar overreaction by the department. After registering for classes last Spring, he emailed the department secretary thanking her for her help with the registration process: "This is excellent. Thank you again for all your hard on helping me with this. It is very much appreciated." The email was obviously missing the word "work" after the word "hard," but nonetheless caused considerable concern amongst the department's faculty.

Gutsell appealed the Advancement Committee's decision, reasonably thinking that he only had to defend himself against these two most recent incidents. There is strong evidence, however, that the department used not just those two incidents but the totality of all of Gutsell's encounters with his fellow students and the social work faculty. In fact, in rejecting Gutsell's appeal, the department as much as says so, telling him in its January 8 letter that "the two incidents reported from Professor Kevin Murphy's [class] this past fall (2009) are not the primary basis for your dismissal." What was the "primary basis," then? Gutsell will likely never know; demoralized, he withdrew his final appeal and is now expelled. Not only was he forced to leave BU, he was forced to leave the United States as well; being a Canadian citizen, his visa stipulated that he remain enrolled full-time to be able to stay. He has now returned home with no degree, a lot of debt, and a lot of questions he will probably never have the answers to.

Torch readers may be familiar with FIRE's previous case at Binghamton, when Andre Massena was ruthlessly prosecuted and nearly expelled for protesting the appointment of a local housing authority official to the department by posting fliers around the BU campus, before FIRE successfully intervened on his behalf. Maybe BU's failed attempt to rid itself of Massena gave it the practice it needed to effectively dispose of Gutsell. As the Review points out,

The parallels between the Gutsell and Massena cases—in terms of department abuse—are glaring. Neither was informed in advance of the charges that were being brought against them by the Advancement Committee, denying them their right to prepare a defense.

[...]

Similarly, during the Massena case, Bronstein added dozens of pages of new charges, unrelated to the posters, after Andre's appeal.

The most blatant consistency, however, is the department's treating of innocent words as expellable infractions. Gutsell, who describes himself as "critical," "assertive," and "not afraid to disagree with people," blames this on department culture. "They don't like a lot of disagreement. They don't like diverse views [and are] very much about conformity."

The Binghamton Review paints a troubling picture of Binghamton's social work department, albeit a rather unsurprising one, given its recent history. That the preceding might hardly raise an eyebrow among readers may be the loudest siren of all calling for change or even an external review of the department. Maybe, one day, justice and fairness will come to the Department of Social Work. But it will be too late for Michael Gutsell.

Permalink | E-mail comments | Posted by Peter Bonilla on February 9, 2010, at 4:54 PM

A Scorching Study of Chopra's Troubled Tenure at Southwestern College

February 9, 2010

The nonprofit news site voiceofsandiego.org had an illuminating piece yesterday about the crisis of confidence gripping Southwestern College (SWC) in California, where the suspension of four professors for taking part in a peaceful protest has exacerbated a community already tightly wound by fiscal straits. SWC students Sean Campbell and Lyndsay Winkley, of the Southwestern Sun, also give the best portrait I've yet read of the leadership of SWC Superintendent/President Raj K. Chopra, whose blunt style has alienated the college's faculty and staff and resulted in, among other things, no-confidence votes from three of the college's main faculty and staff bodies and a campaign to recall three of his supporters on SWC's governing board, not to mention the recent news that SWC was placed on probation by its accrediting body.

As Campbell and Winkley write, the incident that seems to have pushed SWC over the edge is SWC's suspension of four professors (one was quickly reinstated, and the others remained banned from campus for two weeks) for joining a student protest that dared to leave SWC's unconstitutional free speech area—literally, a patio.

Tensions hit an all-time high the night that the human resources director and campus police officer showed up on [English professor Andrew] Rempt's door.

They'd been sent by Chopra to deliver a notice to the four faculty members that they were being placed on paid administrative leave. The educators were accused of inciting students at a rally to leave the college's free-speech zone and march on Chopra's office. They were also investigated on criminal charges of disobeying and confronting campus police.

Facing pressure from the American Civil Liberties Union and the Foundation [for] Individual Rights in Education, along with national media attention, the district ended the investigation. The professors were reinstated, one after two days, the other three after 14 days. The incident was the final straw for many Southwestern faculty members, including Veronica Burton, who said it inspired her to support the recall.

"Anybody can be attacked if you don't agree (with) what's going on here," Burton said.

The article has lots of interesting tidbits about the Chopra era at SWC (such as the article's report that once, "nearly 250 faculty members emptied the auditorium during a 15-minute Chopra speech"), and I won't spoil them all here. The conclusion, however, bears repeating in as many venues as possible—a stark reminder of just where Chopra's priorities seem to lie even as he promises a new day for shared governance and a positive atmosphere:

But at an open forum, a faculty member asked why she should believe that he is committed to improving campus climate. An awkward silence came over the room as Chopra waved his hand dismissively and refused to answer.

Thanks to Campbell and Winkley for this piece of A-plus reporting. Read it all here.

Permalink | E-mail comments | Posted by Peter Bonilla on February 9, 2010, at 9:49 AM

Hitting the Nail on the Head

February 8, 2010

The Georgetown Heckler humor magazine says a lot about campus culture with very few words in its satirical "Other Headlines" section this month:

• University Moves Free Speech Zone to Undisclosed Location

That about sums it up!

Permalink | E-mail comments | Posted by Robert Shibley on February 8, 2010, at 11:50 AM

Victory for Free Speech at San Jose State University: Administrators Lead the Way

February 8, 2010

There is good news today for students living in the residence halls at San Jose State University (SJSU). The housing department has revised several restrictive policies, including a previous FIRE Speech Code of the Month, thanks to the efforts of administrators seeking to protect the free speech rights of SJSU students.

In April 2009, FIRE named SJSU our Speech Code of the Month for a housing policy providing that

Any form of activity, whether covert or overt, that creates a significantly uncomfortable, threatening, or harassing environment for any UHS resident or guest will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution. The conduct does not have to be intended to harass. The conduct is evaluated from the complainant's perspective.

The policy also listed examples of prohibited conduct including "verbal remarks," "ethnic slurs," and "publicly telling offensive jokes."

As we stated at the time, "speech that makes others 'uncomfortable' is in large part what the First Amendment exists to protect." Moreover, the policy's provision that conduct would be evaluated from the complainant's perspective directly contradicted harassment law, which requires that claims of harassment be evaluated from the perspective of a reasonable person—not the most sensitive possible person—in the victim's position. Finally, we noted that the policy's examples of prohibited conduct explicitly included protected speech, such as telling offensive jokes.

Shortly after we published the April 2009 Speech Code of the Month on our website, I was contacted by SJSU housing administrator Michael Palmieri. Mr. Palmieri expressed that he wanted to help reform the speech codes maintained by SJSU's housing department, and he and I began a dialogue about free speech on campus. After almost a year of working with other administrators in the housing department, Mr. Palmieri recently contacted me again with good news: SJSU's housing department revised not only the harassment policy that drew FIRE's attention, but also a posting policy that previously required window displays to be "acceptable for public display, with due consideration given to the diverse population of the residential community."

The new harassment policy for SJSU's residence halls now provides only that

Any form of activity, whether covert or overt, that creates a threatening or harassing environment for any UHS resident, guest, or staff member will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution.

Although FIRE still has modest concerns with this policy from a free-speech standpoint (it is unclear how "covert" activity could be truly harassing or threatening since, to constitute legally unprotected expression, harassing or threatening speech must be fairly severe and obvious), it is drastically better than its predecessor, which posed a serious threat to free speech.

Many thanks to Michael Palmieri and to Stephanie Hubbard, SJSU's Associate Director for Residential Life, for bringing about these vital policy changes. We at FIRE are always very happy to see administrators who care about students' free speech rights and who work to protect those rights on campus. In fact, we have a new publication aimed at administrators who are interested in improving the free-speech climate on their campuses; we call it our handbook for Correcting Common Mistakes in Campus Speech Policies. It is available for free download here.

Permalink | E-mail comments | Posted by Samantha Harris on February 8, 2010, at 10:37 AM

Rights in the News: As FIRE Follows Freedom of Association Case to Supreme Court, Other Free Speech Battles Rage

February 6, 2010

It's not every week that FIRE announces the filing of an amicus brief with the U.S. Supreme Court in a case that will have crucial implications for students around the country, so first things first: Check out FIRE's brief in support of freedom of association in Christian Legal Society v. Martinez and see just what is at stake in this landmark case. And if you normally cringe at the thought of reading legal briefs, David French gives it a ringing endorsement at Phi Beta Cons—calling it "chicken soup for the constitutional litigator's soul." Thanks to Students For Liberty for joining FIRE on the brief.

Also this week, Andrew Sullivan highlighted Greg's Reason article in his blog at The Atlantic. Don't just take Sullivan's word for it that Greg's piece is good reading—go to Reason.com and check it out for yourself.

Meanwhile, at Pajamas Media, Robert covers the eyebrow-raising efforts of the University of Illinois (UI) administration to thwart a student group promoting the restoration of UI's former Chief Illiniwek mascot, as shown through e-mails obtained through the Freedom of Information Act. Mike Adams, at Townhall.com, chimes in on Temple University's efforts to collect extra fees from the student group that hosted Dutch politician Geert Wilders last fall. (The blog Pa Water Cooler has some additional commentary on it as well.) FIRE's case at the University of Minnesota is front-page stuff at the Education Reporter, and Erica Perez of California Watch covers FIRE's fight for freedom of the press at Los Angeles City College along with the Student Press Law Center via CALIFORNIAWatchBlog.

Permalink | E-mail comments | Posted by Peter Bonilla on February 6, 2010, at 9:52 AM

Court of Appeals Divides on First Amendment Protection of Students' Fake MySpace Profiles

February 5, 2010

Can a school punish students for online speech that parodies the principal by joking about his sexual behavior and penchant for illegal drugs? Two strikingly similar cases concerning a school's ability to regulate online speech yielded two different decisions by the same court. Yesterday, separate panels of the United States Court of Appeals for the Third Circuit decided Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. These cases involve speech by students at a high school and a middle school, respectively. Although the government has a much greater ability to regulate speech at these educational levels than in the college setting, these decisions may forecast some ways in which courts will approach online speech at colleges.

In both cases, the student at issue had created fictitious MySpace.com profiles of their respective school principals, attached a photo of each principal taken from the school's website, and described the principal in vulgar and derogatory ways. In both cases, the student was punished by the school as a result of that speech, made on a computer off of school grounds. Yet, in only one of the cases did the court find the school's regulation of that speech to be a violation of the First Amendment. The crux of the difference is whether the court found that the speech could reasonably cause a "substantial disruption" to the school.

In J.S., a middle school student was suspended for her creation of her principal's fictitious MySpace profile, which contained such witticisms as, "For those who want to be my friend, and aren't in my school I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man." The principal's wife is a guidance counselor at the school. In Layshock, a senior in high school was suspended, placed in a special education class, and banned from extracurricular activities for his parody MySpace profile, which contained a question and answer portion, in which the principal was described as being a "big steroid freak" and in which the size of his penis was belittled.

Both panels applied the fairly speech-protective test articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), where the Supreme Court held that high schools and middle schools can regulate speech if it may reasonably cause a "substantial disruption" to school activities. Although lewd or profane speech made at school is unprotected by the Supreme Court's decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the panel in Layshock deemed Fraser inapplicable to speech that was not sufficiently connected to the school. The school had not argued that Layshock's speech caused a substantial disruption, and the panel therefore concluded that Layshock's punishment was unconstitutional. According to the court of appeals:

It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother's computer while at his grandmother's house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District's response to Justin's expressive conduct violated the First Amendment guarantee of free expression.

In direct contrast, the J.S. panel did find that the middle school student's vulgar and potentially defamatory mockery of her principal was not protected speech. This panel did not need to decide whether the lewd speech standard in Fraser applied because the profile was deemed unprotected even under Tinker. The court held that the "minor inconveniences" that had occurred, including students chatting about the profile during class or viewing the profile, were not substantial, but that the school was reasonable in foreseeing future substantial disruption. According to this panel:

However, the School District also argues that, given the immediate impact of the profile on the Middle School, absent McGonigle's quick corrective actions to curb its effect, the profile's potential to cause a substantial disruption of the school was reasonably foreseeable. It is apparent that the underlying cause for McGonigle's concern about the profile was its particularly disturbing content, not a petty desire to stifle speech critical of him, and we proceed with our analysis with this in mind. Therefore, we are sufficiently persuaded that the profile presented a reasonable possibility of a future disruption, which was preempted only by McGonigle's expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators. We are especially concerned about the profile's blatant allusions to McGonigle engaging in sexual misconduct....

In some ways, it is difficult to reconcile the two outcomes in this case, where speech of a similar nature was deemed protected by one panel and punishable by another panel. Perhaps the difference lies in the fact that punishable speech occurred at a middle school, where students are less mature and school activities are therefore more easily disrupted. A middle school also has a greater interest in instilling values of respect in younger students. The Third Circuit might be wise to rehear both cases as an entire court so as to alleviate any inconsistencies.

Of course, these cases are not controlling upon online speech made by college students, as college students are afforded much greater First Amendment protections. But, it is encouraging that the courts seem inclined to give more protection to speech made off of school grounds, so as not to reach too far into the extracurricular speech of students. We hope that when courts are confronted with cases involving college students criticizing administrators, they remember that high schools and middle schools are endowed with more deference to teach values and encourage students to respect authority than colleges have, instead of blindly applying K-12 precedent dealing with children to the adults who populate our colleges and universities.

Permalink | E-mail comments | Posted by Erica Goldberg on February 5, 2010, at 4:25 PM

Southwestern College Accreditation in Jeopardy; ‘Culture of Fear and Intimidation’ on Campus

February 5, 2010

Earlier this academic year, Southwestern College (SWC) in California banned three professors from campus and put them on administrative leave because they joined with students who took a campus protest outside of SWC's unconstitutional free speech area—a mere patio (see map)—to a more visible and audible location. Free speech zones such as this one are plainly unconstitutional and have been soundly defeated in court time after time. The professors were reinstated just two days after FIRE intervened in the case. Nevertheless, this case is not over so long as the "free speech patio" remains in place and SWC violates the First Amendment by keeping this policy on the books. Meanwhile, SWC has even bigger problems on its hands, being on probation from its accreditors because of ongoing reports of a "culture of fear and intimidation" on campus.

In a Progress Report in June 2004, SWC agreed to focus on several concerns identified during the accreditation renewal process, including "supporting an environment of trust and respect for employees." More than five years later, SWC reportedly has failed to establish such an environment. According to the confidential "Evaluation Report" (PDF) prepared by SWC's accreditation team in October 2009, "tension between the Superintendent/President [Raj Chopra] and members of the college community has distracted the institution from ongoing improvement efforts for several years."

The accreditation team from the Western Association of Schools and Colleges consisted of 10 administrators from other community and junior colleges, including Lawrence Bradford, Vice President of Student Services at Los Angeles City College (LACC). Bradford's role here is interesting, since LACC is facing accreditation problems of its own—so severely, he told the Los Angeles Times, that LACC hardly has time to deal with the First Amendment concerns brought up by FIRE and the Student Press Law Center last month regarding LACC's treatment of the school's student newspaper.

As for SWC, the accreditation team recommended 10 areas for improvement, including two items that deal with lack of trust and fear of retaliation among faculty and staff.

Recommendation 8 reads, in relevant part:

The team recommends that the college set as a priority fostering an environment of trust and respect for all employees and students that allows the college community to promote administrative stability and to work together for the good of the college. (p. 6)

The problem appears to go back quite a long way but is at a particularly bad point right now. Recommendation 2 states:

In 1996 and 2003, the college was given similar recommendations regarding issues of trust and creating an environment of mutual respect. Faculty, staff, and students reported to the visiting team [in 2009] that they operate in a "culture of fear and intimidation" and "lack of trust." ... Employees stated that they were fearful for their jobs and that an atmosphere of distrust permeated the college. This negative climate was attributed to the Superintendent/President's action to terminate some staff members following a vote of no confidence by both the faculty and classified unions. ... The long-standing nature of the recommendation, dating back over ten years, suggests that the negative climate is not the doing of the Superintendent/President [who was hired in 2007], but the current administration has not succeeded in addressing the recommendation. (pp. 8-9)

In addition, under the "Human Resources" standard, the team notes:

A significant finding, based upon numerous interviews, is that there is no evidence the faculty and staff feel the college subscribes to, advocates, or demonstrates integrity in the treatment of its administration, faculty, and staff. (p. 28)

Finally, under "Decision-making Roles and Processes," the team states:

Through conversations with all employee groups, it has been reported that the oppressive climate on campus has not improved in ensuing years [since 2003]. Several faculty members commented to the team that they feared reprisal for their words and actions. Examples of this allegation were supplied by faculty via conversations and at the well-attended forums held during the visit [October 5-8, 2009]. Several faculty members cited an environment in which nontenured faculty, middle-level managers, and classified staff feared for their jobs if they spoke freely about an issue that they perceived to be a problem or if they complained about particular issues. ... The perception by some administrators is that eleven or twelve individuals are causing the strife between the college and the administration. ... The obvious adversarial climate that exists on campus is destructive and disruptive to student learning. (pp. 33-34)

It looks like Southwestern College has a long way to go. One of the first things that Superintendent/President Chopra should do is immediately and publicly suspend enforcement of SWC's unconstitutional policies, especially the "free speech patio" policy. Every day that this policy remains in force is a further violation of the First Amendment rights of the members of the SWC community. A public announcement of this action would go a long way toward restoring trust on campus.

If Chopra refuses to do this, it is incumbent upon the Board, consistent with its duty to establish policy, to immediately withdraw SWC's unconstitutional policies and thus avoid further embarrassment and potentially expensive First Amendment lawsuits. Every day counts.

Permalink | E-mail comments | Posted by Adam Kissel on February 5, 2010, at 3:07 PM

FIRE Files Supreme Court 'Amicus' Brief Supporting Freedom of Association in 'Christian Legal Society v. Martinez'

February 4, 2010

Today, the Foundation for Individual Rights in Education (FIRE) filed an amicus brief with the U.S. Supreme Court. FIRE is asking the Court to defend the First Amendment right to freedom of association by overturning the Ninth Circuit Court of Appeals' decision in Christian Legal Society v. Kane, which allowed University of California Hastings College of the Law to forbid its chapter of the Christian Legal Society to organize around shared religious and cultural beliefs. FIRE's brief, which was joined by the national student organization Students For Liberty, also pointed out that the Ninth Circuit's decision let Hastings demand that all groups accept "all comers" as voting members, which leaves groups with minority viewpoints subject to hostile takeovers by students in the majority.

As I said in today's press release about the brief, if student organizations cannot require that their leaders and voting members actually share the group's viewpoints, freedom of association on college campuses will be stripped of all meaning. If we are to have meaningful freedom of association on college campuses, individual students must have the right to form groups around shared beliefs—and the state must not be able to dictate what those groups' beliefs should be.

Christian Legal Society v. Martinez (the case has been renamed since the Ninth Circuit's decision) concerns UC Hastings College of the Law's refusal to recognize the Christian Legal Society (CLS) as a registered student group. Hastings based its refusal on the fact that even though all students may attend and participate in CLS meetings and activities, voting members and group leaders must sign a "Statement of Faith" that expresses belief in CLS' particular religious worldview. 

At issue is a provision stating that "[a] person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership." The statement clarifies that "[a] person's mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership." Hastings argues that this provision violates the university's ban on "sexual orientation" discrimination, despite the fact that the provision conditions membership on changeable conduct and belief, not immutable status. Hastings' restriction on freedom of association was eventually found constitutional by the Ninth Circuit Court of Appeals on the ground that the policy was viewpoint neutral and applied equally to all student groups, even though in practice it prevented groups like CLS from existing with equal (or any) recognition on campus.

FIRE's Will Creeley has observed that the Ninth Circuit's decision should deeply alarm all who care about the rights of those holding minority viewpoints on America's campuses, as it will make make nearly every campus group vulnerable to takeover and dissolution by its enemies if it is adopted by the Supreme Court. This is not a pie-in-the-sky threat, either—indeed, FIRE's brief identified real-life examples of exactly this motivation among hostile students. Using the Ninth Circuit's rationale, the College Republicans could take over the College Democrats, pro-choice groups could take over pro-life groups, and atheist students could take over a Muslim group. All this, and nobody could do anything about it. The Ninth Circuit's decision would put the imprimatur of law on the establishment of a stifling, majoritarian campus culture where dissenters' voices are rarely heard. That is a frightening prospect.

The Ninth Circuit's decision is in direct opposition to an earlier, nearly identical case from the Seventh Circuit, Christian Legal Society v. Walker. In Walker, the Seventh Circuit held that Southern Illinois University's denial of recognition to a CLS chapter was likely a violation of the First Amendment. The court made the obvious point that "[i]t would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct," and had "no difficulty concluding that SIU's application of its nondiscrimination policies in this way burdens CLS' ability to express its ideas." Since the Ninth Circuit's decision directly conflicts with the Seventh Circuit's opinion, the Supreme Court's decision in Martinez will likely resolve this circuit split.

Other amicus petitioners expected to file on behalf of the Christian Legal Society include the Cato Institute, the Union of Orthodox Jewish Congregations of America, the American Islamic Congress, the Boy Scouts of America, Gays and Lesbians for Individual Liberty, the U.S. Conference of Catholic Bishops, and 12 state attorneys general, among many others. It is clear that both religious and secular groups are concerned about the impact of the Supreme Court's upcoming ruling, and they should be. Groups formed for expressive purposes, most prominent among them religious and political groups, should not be made into second-class citizens when it comes to access to campus space and resources.

Permalink | E-mail comments | Posted by Robert Shibley on February 4, 2010, at 4:26 PM

Unconstitutional Security Fee Defeated at Middle Tennessee State University

February 3, 2010

The Alliance Defense Fund has announced a victory for free speech against yet another unconstitutional security fee. Pro-Life Collegians, a student group at Middle Tennessee State University, was required by the university to pay a fee for campus security to place exhibits through "Justice for All," a pro-life advocacy group. According to ADF, no university policy requires a group to obtain such security and other groups holding comparable events were not charged a security fee. ADF makes the case for the unconstitutionality of such a fee:

In the letter submitted to MTSU officials, ADF attorneys argue that such a vague and unwritten standard empowers the university to enforce or waive the fee requirement based upon their approval or disapproval of a student group's message. The letter also states that allowing the uncapped fee gives MTSU officials unlimited authority to silence and charge any disfavored group as they see fit, in violation of the free speech rights of students protected by the First Amendment.

Following the victory, David Fowler, president of the Family Action Council of Tennessee, made the point that "the University's arbitrary application of a security fee requirement could have ‘chilled' the rights of student groups on campus because of the burden a fee would impose on presenting their group's views." That is absolutely true. As the Supreme Court ruled in Forsyth County v. Nationalist Movement, "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." Charging such a fee is essentially a tax on controversial speech, or speech that the administration just doesn't like.

At the end of his column, Mr. Fowler notes, "There may just be someone watching who is big enough and willing to take them on."

Well, the good news is that FIRE is watching—and we've been quite successful at taking on these unconstitutional security fees. We defeated such requirements at four universities in 2009. As Peter reported,

• In February, the Objectivists Club of Berkeley (OCB), a student group at the University of California, Berkeley, was charged over $3,000 by the university to pay for security at a planned speech by Elan Journo of the Ayn Rand Institute. The group was expected to pay for up to twelve police officers to be present solely because of the controversial content of the speech—"America's stake in the Arab-Israeli conflict"—and the fact that there had previously been tension between Israeli and Palestinian student groups on campus. For this, OCB was expected to pay $3,220.63.
• Also in February, the Republican Club at the University of Massachusetts-Amherst learned that another group planned to protest an upcoming speech by conservative columnist Don Feder. In light of this, the UMass Police Department pressured the group to accept increased security fees on top of those it had already agreed to pay. Reluctantly, the Republicans agreed to pay the extra fee of $444.52. Protesters disrupted Feder's speech anyway. 
• In March, the University of Colorado at Boulder group Students for True Academic Freedom was billed for extra security for an event featuring Ward Churchill and William Ayers, partly on the basis of the potential for hostile audience reactions. The bill: $2,203.42.
• In April, the University of Arizona Police Department forced UA's College Republicans to request security for an upcoming lecture by conservative author and activist David Horowitz. A later e-mail by an administrator with the UAPD spoke volumes about its reasons for charging the group: "If you're planning on having an event in the future which involves someone who may be controversial, please notify us so we can assess what security needs to be present." The College Republicans were charged $384.72. 

Making speech too expensive to be heard may be a clever form of censorship, but it's still unconstitutional and still wrong. We're here to keep proving that. 

Permalink | E-mail comments | Posted by Luke Sheahan on February 3, 2010, at 3:23 PM

Speech Code of the Month: Westfield State College

February 3, 2010

FIRE announces its Speech Code of the Month for February 2010: Westfield State College in Massachusetts.

Westfield's Student Handbook prohibits "discrimination," which it defines to include "making disparaging remarks that insult or stigmatize a student's cultural background or race" as well as "making insensitive remarks that reflect a student's disability." Westfield State College is a public university, bound to protect its students' First Amendment right to free speech. The college recognizes this fact elsewhere in its policies, clearly stating that "Westfield State College recognizes that the student, as an adult member of society and a citizen of the United States of America, is entitled to respect and consideration and has the right to the constitutionally guaranteed freedoms of speech, assembly and association." The non-discrimination policy, however, completely ignores this obligation, explicitly prohibiting large amounts of protected speech.

Even more troubling is the fact that the policy, on its face, applies to core political expression. For example, an argument against the stringent requirements of the Americans with Disabilities Act—particularly if it is harshly worded—might sound "insensitive" to disabled students on campus. Or, to take an example of an actual case from the University of Alaska, a discussion of child sexual abuse in Native Alaskan communities might offend students who feel that the discussion insults or stigmatizes their cultural background.

Controversial expression about important political and social issues is at the very heart of what the First Amendment exists to protect, so a policy like this, with its threat of punishment for just those types of expression, is particularly noxious. For this reason, Westfield State College is our February 2010 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please e-mail speechcodes@thefire.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE's Campus Freedom Network, a loose affiliation of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.

Permalink | E-mail comments | Posted by Samantha Harris on February 3, 2010, at 2:32 PM

New Campaign Just Launched: Give Half for Liberty

February 2, 2010

Torch readers, I wanted to make sure you saw the e-mail I sent out this afternoon to FIRE's supporters announcing the launch of our newest campaign. The Give Half for Liberty campaign is an innovative new initiative for FIRE, and I hope you'll take a few minutes to read more about it and get involved:

Today, FIRE is excited to kick off our newest campaign: Give Half for Liberty.

This game-changing campaign will help colleges reform their policies so that students and professors can enjoy freedom of expression, while also helping FIRE raise the funds necessary to continue our vital mission.

While FIRE has enjoyed a great success rate in encouraging schools to reform overbroad, vague, and easily abused policies, we need your help in getting more college administrators to really listen to our message. The truth is that if there is anything that motivates college administrators, it's money, so colleges are likely to listen to YOU—their donors—especially when it affects their bottom line. Please help us send a clear message to America's colleges and universities that fundamental abuses of liberty will not be tolerated and that until administrators start listening, their schools will not earn your full support.

How it works:

You care a lot about your alma mater, the college your child attends, or the school with your favorite college sports team, and as a donor you want to see that school flourish. You also are aware of the sad state of liberty on college campuses today and don't want to see your school fall prey to the PC mafia, or worse yet, Orwellian repression. The colleges and universities you love have strayed far from their core purpose as centers of free thought and open debate and, blinded by bureaucracy, they can't find their way back. But you can help.

Through the Give Half for Liberty campaign, you can donate half of what you usually would donate to a college or university to FIRE instead, so that we can help restore that school to the true "marketplace of ideas" it was meant to be.

Participate in our campaign and FIRE will send a letter to the school of your choice alerting administrators to the fact that they have lost half of your financial support—and that FIRE can help them reform their speech codes so they can regain that support. Donate at the $50 level and FIRE will also include our new handbook for administrators, Correcting Common Mistakes in Campus Speech Policies—a must-read for those looking to better their schools.

Money talks, and FIRE is confident that with your help we can get school administrators to listen.

Act now to help your school reach its full potential—your donation to this campaign just might be the final push administrators at your school need to restore freedom to campus. It's time we put a price on violations of our liberties.

I encourage you to visit FIRE's one-of-a-kind speech code database, Spotlight: The Campus Freedom Resource, to learn about the state of liberty at more than 400 schools. If you have any questions about this campaign or about FIRE's cases and issues, please do not hesitate to contact me at robert@thefire.org or 215-717-3473.

 

Sincerely,

 

 

Robert L. Shibley

Vice President, FIRE

 

P.S. Not a donor to your alma mater? If you still want to support FIRE's work and send a message to your school, click here. With a donation of $50 or more we are happy to send your school a copy of our "common mistakes" handbook. Just include a comment with your donation letting us know that you would like us to send one.

Permalink | E-mail comments | Posted by Robert Shibley on February 2, 2010, at 5:05 PM

University of Oregon Divided over Free Speech Controversy

February 2, 2010

The University of Oregon student body has been learning some useful lessons in liberty as the campus debates what to do about an extremely controversial group's presence on campus. Last week, the student government narrowly voted to defend free expression when it voted down a resolution designed to push the group off campus for good.

The organization is the Pacifica Forum, a discussion group hosted on campus by an emeritus professor, as permitted by university rules. The group is so controversial, it appears, because every so often it discusses topics that a lot of people on campus find extremely offensive—such as the swastika or Nazism—well, not just because of the topics, but because some of the participants appear to the critics to be voicing far too much sympathy for ideas of white supremacy. You can find this criticism of the Pacifica Forum in full force on the Facebook.com group "UofO students and community members against the Pacifica Forum," and you can find defenses of the group's right to free expression in reasonably good order on the website of student publication the Oregon Commentator.

The most recent ten discussion topics that are posted as of today on the Pacifica Forum's website are these:

• Neo-Communism and the Anti-Hate Task Force
• Symbolism of the Swastika — A debate between Billy Rojas and Jimmy Marr
• Everything You Wanted to Know about Pacifica Forum but were Afraid to Ask
• Power Laws in Highway Construction and Finance
• An Insider's View of America's Radical Right
• Coal Strip Mining: America's Worst Environmental Problem
• Free Speech for Me - But Not for Thee: The Marcusean Assault on the First Amendment
• Amending the Amendment: Historical overview of Supreme Court cases affecting the First Amendment
• Hindu Holocaust: How Islam nearly Destroyed Indian Civilization
• Islam, Religion of Peace or Holy Horror?

The group met at the university's Erb Memorial Student Union until a few weeks ago, when it met in a larger space than usual because of the expectation of hundreds of protesters for the discussion of the swastika on January 15. The protesters came and disrupted the event.

The disruption appears to have been organized by student government president Emma Kallaway, and Vice President Getachew Kassa who, according to the Oregon Commentator's January 25 issue, helped to coordinate a rally prior to the disruption:

"We wanted to create fear and anger in the forum, and we accomplished that today," said Kassa.

According to campus newspaper the Oregon Daily Emerald, the disruption was severe enough that law enforcement officers had to remove several protesters from the room.

Rather than decry the disruption of an event on campus, however, University of Oregon President Richard Lariviere reportedly praised the action, according to The Register-Guard (Eugene, Oregon):

"I am intensely proud of the students and the community and the way they stood up to that hateful speech," he said.

This response reminds me of another FIRE case out in the Pacific Northwest, where Washington State University officials actually trained student protesters to disrupt the performance of a play billed by its student playwright as "offensive to all audiences" and then paid for their tickets so that they could disrupt it. The protests included threats of violence. Afterward, the university's president praised the protesters because they "exercised their rights of free speech in a very responsible manner by letting the writer and players know exactly how they felt."

At Oregon, however, it is the students who are now playing the "safety" card, with some students confusing what they call "hate speech" with realistic threats. In fact, one of the most outspoken critics of the Pacifica Forum from the local community of Eugene, Michael Williams, a member of Eugene's Anti-Hate Task Force—and who "has monitored the [F]orum since 2003"—has himself acknowledged that there is no safety issue on campus, as the Commentator reports:

"I have attended every meeting, and made sure I was the most informed person in the room, including the speaker," Williams said in an interview ... "I don't know of any threats that have gone to the legal level, but there have been implied threats, and there has been intimidation," he remarked when asked about the safety issue.

The Commentator similarly reports Dean of Students Paul Shang saying that "the group is consistently close to language that sounds threatening, but isn't legally threatening." (The Commentator did not quote Shang directly.)

Nevertheless, now that students have played the "safety" card, the group is no longer going to be allowed to meet in the student union building this academic year but will be provided space elsewhere on campus. Here's the university's announcement, excerpted below:

Student leaders are concerned about personal safety and the well-being of our campus. We take these concerns very seriously.

In response, the Pacifica Forum's reservation in the Erb Memorial Union (EMU) will be transferred to a different location for the remainder of this academic year. The alternative location, currently Agate Hall, will provide better security options for the campus, recognize the community rather than student nature of the Pacifica Forum, and provide a larger venue when necessary. We will continue to monitor and review this decision.

[...]

As a public institution, we value free speech and academic freedom. As an academic enterprise, it is appropriate for us to debate the boundaries and expectations of free speech. Our primary mission is the advancement of student learning, research and service. Activities that occur on our campus should emanate from these core goals and must not jeopardize safety or disrupt our educational and workplace environments. When they do, it is our responsibility to respond.

Armed with this victory, the leading student protesters are now working on getting the group banned from the rest of the campus—hence last week's failed student government resolution. It is heartening that so many students still see this issue for what it is: a free speech issue. As the Emerald reports:

The resolution's opponents said they were nervous that passing the measure would violate Pacifica Forum members' First Amendment rights. Some said they had changed their minds since the Senate unanimously put the resolution up for a vote at its Jan. 20 meeting. 

"I voted 'yes' last week and had a very emotional moment," said Sen. Demic Tipitino, adding, "I realized my conscience would not let me vote against free speech."

The meeting grew more and more emotional as debate raged. Senators speaking against the resolution were frequently interrupted by audience members, and two senators began crying during the meeting.

The Senate's first attempt to vote on the resolution failed, and the meeting appeared to have reached a breaking point when Anti-Hate Task Force member Michael Williams, a longtime Pacifica Forum opponent, stood up and began speaking while a senator was talking. However, Williams' speech implored audience members to remain quiet and allow the Senate to vote.

Shortly thereafter, just before midnight, the Senate was able to vote on the subject, rejecting the resolution by a vote of seven for, 11 against and one abstaining.

Student Senator Demic Tipitino should be commended for his change of heart. The First Amendment and the principles of free speech are so important because, for one thing, they protect minority views. The more of a minority the view, the more it needs protection, and the more it needs people like Demic Tipitino. A person might thoroughly despise the speech that the First Amendment protects today, but the same person might feel tremendous appreciation when the same principles protect his or her own minority views tomorrow.

Meanwhile, the university appears to be trying to figure out how to change its policies just enough to be able to ban the Pacifica Forum without violating academic freedom or freedom of expression. That's going to be hard to do. Here are a few ideas that I've seen so far, none of which is going to be acceptable to free speech advocates or to the First Amendment. 

1. The "safety" rationale fails in the absence of truly proscribed speech, such as true threats (and even then, it would be unclear whether an individual threat would be enough to discipline the entire group). I've also seen some incorrect statements of the exceedingly rare "fighting words" exception to First Amendment protection in the Facebook group I mentioned above. In Tinker v. Des Moines Independent School District, the Supreme Court determined that, even in high schools, "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." (Emphasis added.) Tinker is binding on public colleges like University of Oregon as a minimum requirement—colleges must tolerate much more freedom of speech than must high schools.

2. If the protesters think that they can create enough trouble that their disruption of the group can get the group banned, they have the situation exactly backwards. According to the student who appears to be the leader of the protesters, Devon Schlotterbeck, on the Facebook group on January 25:

The administration has also drafted a change of policy that will hopefully be enacted sometime in the coming weeks, however this policy will only make the Forum pay for the rooms they rent, but it doesn't stop them from meeting in the EMU necessarily. When that policy is enacted, we must continue to show up in large numbers because the Forum will have to pay for the room rental fee as well as a fee for the police presence (which will have to be brought in for large numbers of protesters) and that will hopefully be expensive enough to force the Forum off campus ...

Just as before, however, law enforcement will protect the rights of the group being disrupted, no matter how proud of the disruptive students the president feels.

Furthermore, it is unconstitutional to require the group to pay for its own protection, as FIRE has pointed out successfully time after time, for instance at the University of Colorado at Boulder; University of Massachusetts Amherst; University of California, Berkeley; and University of Arizona—all of which abandoned such security fees in FIRE cases just last year. The key point is this, as stated by the Supreme Court in Forsyth County v. Nationalist Movement (1992): "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." (Emphasis added.)

3. If the university will attempt to argue that the Pacifica Forum is not sufficiently "academic" to be allowed on campus, this is going to be an impossible standard to enforce across the board. Will the university start to monitor all events in order to step in when someone makes an insufficiently academic comment? Will certain topics simply be declared not acceptable for discussion at the university? The list of recent Pacifica Forum events makes clear that this group discusses issues of public concern—core protected speech under the First Amendment. The fact that some of the members seem to hold what might charitably be called "controversial" views does not invalidate the group's right to discuss these topics. Besides, how is the university going to evade unconstitutional prior review and unconstitutional prior restraint on groups that apply to hold events on campus following regular procedures?

4. Likewise, the university is not going to be able to ban the group because it or its members have violated—or might one day violate—the university's unconstitutional speech code or similar "anti-hate" rules. There's no First Amendment exception to permit the banning of "hate speech," and what seems hateful to one person is often a sincere view (or even a pointed satire) to another person.

I will close with a couple of things for the protesters to think about. First, is it better to know who your enemies are, or to drive them underground? Second, getting the group banned from campus will not be enough if you really want to avoid the people you claim to fear—the next step will be to ban all individuals with the views you hate from the whole campus. And history shows that few people wish to live the consequences of a regime that has developed a taste for kicking unpopular people out of the community.

Update: It was discovered that someone over the weekend spray painted a swastika on the floor in the office of the student group Lesbian Gay Bisexual Trans Queer Alliance, and damaged other property in the office, although there was no sign of forced entry. Vandalism is, of course, illegal, and the perpetrator(s) must be brought to justice—including anyone who conspired with the offender(s) or incited someone to commit the illegal act by a legally applicable definition of incitement. At present, however, there appears to be no suspect. 

Nevertheless, according to the Feb. 3 Oregon Daily Emerald, student government president Emma Kallaway said that "she would pursue removing the [F]orum regardless of the [student government] Senate's decision" on whether to pursue kicking the group off campus. The Senate will be considering a new resolution that does not ask the Pacifica Forum to leave campus:

[Senate Vice President Nick] Schultz said senators told him they would support the resolution "as long as there isn't any attempt to remove the Pacifica Forum from campus."

Not all senators said they would support the new resolution, however. Sen. Tyler Griffin, who voted against the original, said he won't support any resolution that mentions the Pacifica Forum. He said the incident in the LGBTQA increased the need to act, but he said a resolution against the Pacifica Forum specifically would be misplaced.

"We should pass a resolution that makes our campus safe and brings our campus together," he said. "But this is not the way we unite - by ousting a group." Not all senators said they would support the new resolution, however. Sen. Tyler Griffin, who voted against the original, said he won't support any resolution that mentions the Pacifica Forum. He said the incident in the LGBTQA increased the need to act, but he said a resolution against the Pacifica Forum specifically would be misplaced.

"We should pass a resolution that makes our campus safe and brings our campus together," he said. "But this is not the way we unite — by ousting a group."

Permalink | E-mail comments | Posted by Adam Kissel on February 2, 2010, at 3:33 PM

FOIA Request Reveals That University of Illinois Administrators Conspired to Censor Student Speech

February 1, 2010

FIRE always has plenty to report about the mischief of college administrators as they stifle free expression on campus. Robert reports over at Pajamas Media on the latest from the University of Illinois, Urbana-Champaign, where administrators were hard at work to ensure that their own students couldn't advocate for the return of the banned UI mascot, Chief Illiniwek.

Students for Chief Illiniwek (SFCI), a recognized student group at UI, advocates for the return of Chief Illiniwek as UI's sports mascot. The mascot was retired during the NCAA's campaign to rid colleges and universities of most Native American mascots. SFCI was formed in response last fall and was intent on holding "The Next Dance," an event named for the mascot's traditional dance. While the event did eventually happen, the group ran into quite a bit of trouble along the way. To figure out what sort of shenanigans UI administrators were up to, the group filed a request with the state of Illinois through the Freedom of Information Act (FOIA). Robert reports:

The results of that request provide a startling and disturbing look at the efforts that administrators and some faculty are willing to undertake to try to derail students willing to defy political correctness on campus.

The FOIA documents, which can be downloaded here (warning, large PDF), begin with a September 6, 2009, e-mail from Renee Romano, vice chancellor for student affairs, to Michael DeLorenzo and Anna Gonzalez, associate vice chancellors for student affairs. Romano reported that she had spoken to then-Chancellor Richard Herman about the upcoming "chief dance in the assembly hall" and that Herman was "considering banning student organizations from using the assembly hall." She said she told Herman that "they might challenge the legality of banning RSOs [Registered Student Organizations] from Assembly Hall, but that I'd be willing to take it on."

By that evening, Romano had given up on that idea. This excerpt from her 8:57 p.m. e-mail to Chancellor Herman is very revealing: "From my experience, it doesn't work to develop a policy ‘after the fact,' after something happens that you're trying to change. It makes it appear that you're trying to stop that particular organization which becomes a free speech issue again."

Darn right it does! Robert continues:

Of course, in the next paragraph, we find out that stopping a particular organization is precisely what they're trying to do: "I think we've done a good job at pushing the program to a time slot that will not be as visible or popular for people to attend. I am hoping that eventually, these events won't be popular enough to support." She concludes, "If we're forced to go forward with this event, Anna [Gonzalez] will most likely have a list of recommendations to help us manage it. Let me know if there's anything more I can do." To Herman's minimal credit, he responded that "the issue is ultimately free speech as long as theyare [sic] an RSO." He maintained, however, that it "seems a bad idea" for the event to take place.

Not happy to leave the warpath against students' rights, UI administrators continued their efforts to censor SFCI.

[T]he following day, Romano wrote Herman again, saying in part, "I'm just trying to think of a reason to deny them access to the hall on Oct. 2. At this point they know there's nothing scheduled." After further discussion, this idea died as well. But after an e-mail from Emeritus Professor Stephen Kaufman demanding that the university rescind approval for the event, Edward Slazinik, director of the Illini Union, sent a September 15 e-mail noting that the event had not yet been officially registered.

An e-mail response from Anna Gonzalez came the following day, asking, "Since they have not registered the event for this year, can the event be pulled? Is there a time limit for that — say, they have to register an event 1 week prior?" However, SFCI's event dodged this final bullet, as Slazinik responds that such an effort "would only accomplish making the university look foolish."

Oh, bother! They would have to let the group go through with its scheduled event after all. But some professors, including Robert Warrior, director of American Indian Studies at UI, continued to seek to stifle the group's expression by demanding that the university take down the posters advertising the event. The university agreed to look into the posting rules to see if there was some way that it could remove the posters without violating its own regulations. But that was not enough for Professor Warrior, who wrote, "I don't care about posting rules. Hate escalates. It's a fact. ... I am no longer willing to participate on diversity committees like the one I am on that you chair, initiatives, or events." Having to experience expression that he didn't like was just a little too much for Prof. Warrior. Maybe taking a job at a public university, which the Supreme Court has called a "marketplace of ideas," wasn't a wise career move.

Robert [Shibley, not Warrior] concludes:

Watching administrators and professors flailing madly in their attempts to reconcile the demands of political correctness with the demands of the Constitution and common sense is undeniably amusing. Yet it also goes a long way towards proving what the Foundation for Individual Rights in Education (FIRE) and other defenders of civil liberty on campus often say: if a rule or principle can be abused or ignored to censor dissenting speech, it will be.

At the University of Illinois, public servants with the exalted ranks of chancellor, vice chancellor, and associate vice chancellor spent hours of effort brainstorming and scheming to stop, move, or otherwise disrupt a student organization's event through multiple means. How would these same people react if Illinois politicians went to the same lengths to interfere with university events? A high-ranking professor and department director demanded that the university ignore the Constitution and its own policy to prevent students from seeing a "genocidal" poster the meaning of which he doesn't even understand. How would he react if the police showed the same lack of respect for his Sixth Amendment rights (to a trial by jury, for instance) that he shows for his students' rights?

First Amendment rights? Parents and students at every university in America should take a close look under the rock turned over by this FOIA request and ask themselves: how much of this goes on at my alma mater?

My guess is: quite a lot. 

Permalink | E-mail comments | Posted by Luke Sheahan on February 1, 2010, at 4:23 PM

U. Minnesota Teacher Ed Scandal Keeps Rippling Through Minnesota—And Beyond

February 1, 2010

The February 2010 issue of Mpls.St.Paul Magazine features an interview with Rep. Michele Bachmann of Minnesota in which she discusses the teacher education scandal at the University of Minnesota - Twin Cities, where the Race, Culture, Class, and Gender Task Group proposed an ideological litmus test for future teachers based on a highly politicized notion of "cultural competence." FIRE intervened, and the case made national news before the university's top lawyer finally promised that the university would never screen out prospective students with the "wrong" views. 

In the interview, Bachmann complains of "politically correct indoctrination" in the materials that her foster children were bringing home from school. When the interviewer, Steve Marsh, asks her whether she means an "obsession with multiculturalism," Bachmann replies:

Your perfect example is from the University of Minnesota's school of education—their new standard . . . a prescribed level of indoctrination that students [are tested on] in order to matriculate. That's wrong. The state should not impose a value system in order to receive a teaching certificate. That's a First Amendment issue. (Footnote omitted; brackets in original.)

Rep. Bachmann has it right. As we said from the beginning, freedom of conscience is a First Amendment right, and the task group sought to impose its value system on students and faculty members in violation of that right. I hope that everyone will agree, whether one likes the task group's views or not, that it's the opposite of education in a free society when teachers mandate the values, attitudes, and beliefs of their adult students.

Meanwhile, Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, is one of the latest to write about the scandal. In an opinion piece last week, "The Newest Cliché" (reprinted in, for instance, the New Bern, NC, Sun Journal), Greenberg writes:

An excerpt or two from this Task Group's communique sums up the flavor of the whole, dubious enterprise: "Our future teachers will be able to discuss their own histories and current thinking drawing on notions of white privilege, hegemonic masculinity, heteronormativity, and internalized oppression. ... Future teachers will recognize and demonstrate understanding of white privilege. ... Future teachers will understand the importance of cultural identity and develop a positive sense of racial/cultural identity."

Like many other commentators since November, Greenberg realizes that quotations from the task group's report pretty much speak for themselves. It is good to know that so many people recognize violations of freedom of conscience when they see them.

Permalink | E-mail comments | Posted by Adam Kissel on February 1, 2010, at 12:07 PM

Andrew Sullivan Highlights Greg's 'Reason' Article in 'The Atlantic'

February 1, 2010

Popular political blogger Andrew Sullivan, proprietor of The Daily Dish, a widely read blog at The Atlantic, has chimed in on the will to censor on campus after reading Greg's current article in Reason. As any reader of the article (or any daily reader of The Torch, for that matter) should be, Sullivan is appalled, titling the blog entry "PC Hell In The New Century." Sullivan writes:

Greg Lukianoff examines the enduring pattern of censorship on college campuses, beginning with this egregious example:

In 2007 a student working his way through college was found guilty of racial harassment for reading a book in public. Some of his co-workers had been offended by the book's cover, which included pictures of men in white robes and peaked hoods along with the tome's title, Notre Dame vs. the Klan. The student desperately explained that it was an ordinary history book, not a racist tract, and that it in fact celebrated the defeat of the Klan in a 1924 street fight. Nonetheless, the school, without even bothering to hold a hearing, found the student guilty of "openly reading [a] book related to a historically and racially abhorrent subject."

Other egregious examples of campus censorship to be found in Greg's article include:

• Valdosta State University's expulsion of student Hayden Barnes for posting a satirical collage on his Facebook page.
• The University of Delaware's attempts to intimidate and coerce the 7,000 students in its residence halls to accept a very particular and highly politicized set of values, a program UD itself referred to as a "treatment."
• Brandeis University's punishment of a professor for trying to explain and critique the term "wetback" in a class on Latin American politics.

Many thanks to Andrew Sullivan for his attention to Greg's article and the problem of censorship on campus, and be sure to read Greg's Reason article if you haven't yet.

Permalink | E-mail comments | Posted by Peter Bonilla on February 1, 2010, at 11:30 AM

Rights in the News: Old and New FIRE Cases Are Hot Topics

January 30, 2010

In addition to media interest in Temple and Michigan State Universities for their continuing failure to respect their students' First Amendment rights, FIRE this week is in the pages of the Los Angeles Times which, as I wrote yesterday, looks at Los Angeles City College's crusade to censor its Collegian student newspaper. Meanwhile, University of Delaware (UD) professor Jan Blits, marking an auspicious start for the new AAUP Journal of Academic Freedom, has written a new essay on UD's notorious residence hall thought reform program that has so much good material that we've covered it twice here at The Torch.

FIRE also has been documenting the troubled recent history of alumni-trustee relations at Dartmouth College.

If you're caught up with these cases, see also two good articles on the insanity of campus speech codes by Mark Bauerlein and Mike Adams, for Minding the Campus and Townhall.com, respectively. See also Bauerlein's latest dispatch on the University of Minnesota's heavily criticized redesign of its teacher education curriculum in the Chronicle of Higher Education online. Thanks to FIRE and ongoing national and local scrutiny, the aspects of the proposed program that would have violated individual rights are unlikely to be enacted. Among the latest to criticize the proposal are Minnesota Rep. Michele Bachmann and Steve Marsh in Mlps.St.Paul Magazine.

Permalink | E-mail comments | Posted by Peter Bonilla on January 30, 2010, at 10:34 AM

Alumni Democracy at Dartmouth College: Changing the Culture

January 29, 2010

This is the final entry in a five-part series on recent developments at Dartmouth College. Read posts from Monday, Tuesday, Wednesday, and Thursday.

Over the last decade, FIRE has secured 168 public victories in its ongoing effort to maintain liberty at colleges and universities across the country. (This interactive map documents each case.) While these individual victories are no doubt significant, the difficult question remains: How do we change the culture from which these abuses arise?

One possible method, though there are many, is for alumni to take a more active role in their alma mater's direction. That has been the underlying message of this week's series on governance trends at Dartmouth College: In order for reform to take hold, alumni should use all available avenues to make their voices heard.

At Dartmouth, a group of concerned alumni were able to use Dartmouth's unique system of open democracy to gain seats on the inside. Their advocacy—repeal the speech codes, hire more faculty, and reinvigorate financial oversight—resulted in the powers-that-be attempting to mitigate their influence by changing the board's structure.

The board structure has now been changed, but whether Dartmouth alumni will accept this diminished role remains to be seen. All eyes in Hanover will soon turn to the first trustee election since 2007, in which pro-parity petition candidate Joseph Asch will compete against an officially-nominated opponent who has no declared position on board parity—which makes all the difference when it comes to the relative influence of the alumni on the board.

For those outside the Dartmouth community, this may appear to be just one college's internal governance dispute. But lessons abound for graduates hoping to influence the culture of their college, even those without the same degree of democratic access to their school's decision-making body.

At Dartmouth, independent trustees (and candidates) showed the importance of parsing university press releases and polished data sets to find out what's really going on. Asch, for one, has built a reputation of not accepting Dartmouth's claims at face value. He wrote a Dartblog series, for example, that questioned official statistics on student-faculty ratio in August and September 2009. It upset some administrators, but it also contributed to the discussion of why some students were shut out of certain classes. Even in the midst of budget cuts, the college continued to hire new professors in November 2009.

While the Internet offers powerful ways to reach students and administrators, submitting opinion pieces to independent campus newspapers is no less effective at providing a critical alumni perspective. Petition Trustee T.J. Rodgers criticized the school's speech code, his colleague Todd Zywicki called on the board to honor the 1891 Agreement, and trustee—hopeful Asch examined administrative expansion, all in the student-edited newspaper, The Dartmouth.

Of course, money talks, too. If alumni are dissatisfied, perhaps they should consider Zywicki's advice to "Check That Checkbook" when the development office comes calling. Rather than reflexively donating to a college's general fund, Zywicki writes, graduates should consider earmarking their gifts to support programs of their choice. The more ambitious alums might even consider telling their school's development office that they'd like a voice in how their contribution is spent. Or, as some at Dartmouth have put it: "No Donation without Representation." (FIRE also has a donation option for giving to FIRE in lieu of a gift to your university—and we can let your university know that you've taken a stand.)

Having trustees willing to speak up against students' rights abuses or to speak out when their college or university doesn't live up to its promises is also essential to changing the campus culture, according to FIRE Chairman Harvey Silverglate. "They cannot be allowed to accept the accolades, honors and prestige that go with being trustees," Harvey wrote, "without performing the sometimes-hard duties."

At Dartmouth College, those who willingly embraced the sometimes-hard duties—recognizing it would benefit their alma mater in the long-run—became the targets of an administrative power grab. Yet, more than two years later, they are still actively trying to right the ship and preserve alumni democracy. Their involvement and perseverance should serve as inspiration for any alum who knows their college or university can do better.

Permalink | E-mail comments | Posted by Kyle Smeallie on January 29, 2010, at 4:55 PM

This Month in FIRE History: Dismissal of Professor for Criticizing Iraq War

January 29, 2010

In 2004, Forsyth Technical Community College (FTCC) writing instructor Elizabeth Ito was dismissed for briefly discussing the Iraq War in her class.

After Ito's 10 minute criticism of the war in Iraq, she encouraged her students to share their opinions about the war as part of an anonymous critical writing assignment (they were not required to agree with her). Afterwards, Ito was asked by her supervisor, Department Chair Susie Keener, and John Slade, dean of the College of Arts and Sciences, to promise that she would never discuss the war again in class. Ito agreed that she would not bring up the topic herself, but wouldn't promise to avoid the issue if it were raised. Dean Slade rejected this compromise and placed a disciplinary letter in her file accusing her of "insubordination." Ito did not discuss the war again in class, but as a result of the incident, administrators at the college decided not to renew her contract.

FIRE wrote FTCC President Gary Green, expressing concern about the college's treatment of Ito. FIRE also reminded the college that part of its stated mission is to "prepare globally competent citizens"—a difficult task if professors are not permitted to discuss global issues in their classes without punishment. FTCC never responded.

"Debate and candor will not long survive in the American classroom if instructors have reason to fear for their jobs if they express their opinions," FIRE President Greg Lukianoff said at the time. "FTCC's actions will chill the free speech of faculty members who must now worry if they make the slightest digression from what administrators believe is relevant in the classroom. If colleges and universities are to err, they should err on the side of free speech."

Six years later, FTCC remains unapologetic about its ill-advised decision.

Permalink | E-mail comments | Posted by Claire Jenkins on January 29, 2010, at 2:34 PM

Delaware Professor: University Corporatization Can Lead to Indoctrination

January 29, 2010

Indoctrination, which aims to mandate students' views rather than stimulate students to think through those views for themselves, is anathema to a liberal education. Yet, a recently published article by Jan Blits, one of the professors who alerted FIRE to the University of Delaware's now infamous (and unconstitutional) Residence Life program, exposes how college administrators are eroding the faculty's traditional prerogative to decide what students should learn. The result is too often indoctrination instead of true education. 

Blits' article, Hidden (and Not-So-Hidden) New Threats to Faculty Governance, addresses the increasing role of administrators and the diminishing power of faculty in making decisions concerning the educational mission of the university. Blits argues that senior administrators, who often know no other way, attempt to "corporatize higher education" and thus have relatively little respect for the role of professors in determining the curriculum. Meanwhile, "student affairs" administrators tend to believe that the classroom fails to provide a true education and that they can do better than the faculty. With the support of senior administrators, the student affairs administrators carve out new quasi-academic or non-academic areas of education such as residence life "education" programs that are never assessed by the faculty for quality or for how they fit with the university's overall educational mission:

You only need look at the publications of the American College Personnel Association (ACPA) to see this. The publications proclaim "a shift in thinking." The traditional distinction between "academic affairs" and "student affairs" is said to be misguided, and Residence Life administrators must unite the two. The challenge, the publications say, is "to create living-learning environments that fully engage students at meeting desired learning outcomes." The emphasis is on "learning outcomes," as defined by Residence Life. ResLife administrators are to create so-called "education" or "curricular" programs that change students' opinions, beliefs, and actions in a predetermined direction. The aim is to "turn" students, as UD Residence Life administrators openly announced—to convert students with "traditional" beliefs into "allies" and "change agents" of social justice, workers' rights, living wages, fair trade, redistribution of wealth, water rights, immigrant rights, the rights of indigenous peoples, corporate responsibility, anti-consumerism, anti-environmental racism, multicultural competencies, affirmative action, gay rights, gender equality, domestic partnership, and so on.

Blits describes the unfortunate result: following their idea of a noble mission, administrators take up the authority to impose views on students and coerce them into altering their values in ways that faculty members would never be allowed to do, creating programs designed to push the college's favored ideological viewpoints through mandatory programs. At schools like the University of Delaware, people without any real pedagogical training were put in charge of these programs, which led to the inhibition of debate instead of the promotion of academic inquiry. Delaware's ResLife office, through humiliating and oppressive tactics, thus imposed its own highly politicized views about race, class, and sexuality on all students living in the dorms. 

In order to do this, students were taught not to question the premises behind ResLife's mandatory programs, resulting in "[r]adically diminished intellectual inquiry." Blits learned that when ResLife's Resident Assistants (RAs) overheard students discussing fundamental topics like politics and religion, they were trained to stifle this type of dialogue by taking control of the discussion, breaking it up, and sending the students their separate ways:

One student described how, if a Residen[t] Assistant heard students discussing politics or religion, the Residen[t] Assistant would intervene, give each student the chance to state a position, and then tell them to disperse. There were to be no questions and answers, no back and forth. Discussion meant no exchange, no probing, no explanations, no real listening, no real thinking. It meant not being held accountable, or holding another accountable, for what one said or thought. Residen[t] Assistants said that they had been trained to quash such discussions, whether private or public, as being uncivil. Considerate behavior toward others came to mean considering no one's thought, including one's own.

Instead of expanding the students' minds, this administrative program apparently was designed to impede critical thinking.

Blits argues against the conflation of "academic affairs" and "student affairs" so easily engendered by the corporatized university. While administrators are the primary culprits of this dilution of our understanding of what is "academic," Blits aruges, some blame should rest on faculty members as well. Professors who accept the notion of "service learning," he argues, run serious risks if they let non-professors guide the educational experience:

Service learning claims to combine service objectives and learning objectives, so that students take part in active education while at the same time addressing the concerns, needs, and hopes of their community. Typically, however, service learning lacks rigor and faculty oversight, and is based largely on the student's own idiosyncratic, self-generated experience. I strongly favor students performing community service (as I did in college), especially at a time when students are often highly self-absorbed. My concern is that giving academic credit for such activity not only waters down academic standards, but also erodes the line between academic and non-academic. Everything becomes—or may become—academic, and so nothing is academic. Not just the standards within academics are eroded, but the standard for "academic" itself—and who may properly claim to be an "academic." 

We hope that Blits is right and that thought reform programs like the University of Delaware's can be prevented if faculty members take back full oversight of the curriculum. True learning—especially about controversial topics—should be guided by those with academic expertise who challenge students to question ideas, not by those who mandate that students conform to the ideas of their teachers.

Permalink | E-mail comments | Posted by Erica Goldberg on January 29, 2010, at 12:52 PM

President Obama to Nation's Universities: It's Time to Cut Costs

January 29, 2010

In his State of the Union address Wednesday evening, President Barack Obama mentioned a topic of particular interest to FIRE. Discussing the need to make higher education more affordable and accessible to Americans, President Obama stated:

And, by the way, it's time for colleges and universities to get serious about cutting their own costs, because they, too, have a responsibility to help solve this problem.

One crucial way that colleges can save money is to refrain from waging pointless appeals in free speech litigation when they are clearly on the wrong side of the law, as such litigation is an incredible waste of taxpayer funds. For example, Georgia Institute of Technology rang up over $200,000 worth of charges to taxpayers defending its violations of students' First Amendment rights. Rather than recognize when it was beaten, Georgia Tech forged ahead with litigation and ended up paying this astronomical amount for the winning side's attorneys' fees and expenses. It goes without saying that this was not a wise expenditure of taxpayer money. Likewise, Temple University was ordered to pay the opposing side's attorneys' fees when it lost the fight over the constitutionality of its speech code. (In civil rights litigation, the law makes it possible for the plaintiffs to collect attorneys' fees and expenses from defendants if a civil rights violation is established.) Thus, in addition to paying their own lawyers, which can be very expensive by itself since these cases tend to stretch out for years, universities fighting these losing battles end up having to foot the bill for the injured parties as well.

Colleges should therefore think twice or even three times before defending their speech codes in court when students challenge them as violations of their speech rights. For one example, despite the fact that two decades of case law have come down unanimously against speech codes, Tarrant County College in Texas continues to defend its policies against two students' First Amendment challenge. For another example, despite receiving a resounding defeat in federal district court on the merits of its sexual harassment policy, the Los Angeles Community College District has stubbornly appealed the decision to the Ninth Circuit Court of Appeals, thus ensuring further taxpayer expenses to defend an unconstitutional policy. You can keep going down the line in our speech code cases: San Francisco State University, Texas Tech University, and others like them made the same mistake of expensively defending their policies. 
Now more than ever, it's time for universities to learn the lessons of the case law and save the taxpayer money that is being unwisely spent. Do they think taxpayers would actually approve of wasting their hard-earned dollars fighting well-established interpretations of the Bill of Rights in federal court? I don't think so.

FIRE has also written before about the bloated administrative bureaucracy that characterizes too many campuses, and we lament the fact that far too few colleges and universities have cut down on needless and redundant administrative positions even in the face of a recession. Employing so many administrators—whose positions often overlap and leave them looking for a piece of turf to lord over on campus—often results in undesirable encroachments on students' lives, rights, and liberties. After all, these administrators have to justify their positions and their salaries somehow--and overregulation of campus life, including students' expressive rights, is many times the unfortunate consequence.

Harvey Silverglate has written many times about the burgeoning costs of employing so many administrators, but universities seem to have missed the memo. As Harvey has noted, the trend is also connected to the often harmful "corporatization" of the university. The time has come for universities to examine their expenditures with a critical eye and realize that, rather than slash things like student newspaper funding (as Los Angeles City College did) or a major portion of the curriculum (as Southwestern College in California did, prompting the campus protests that resulted in the suspension of three professors), they should pare down the unnecessary parts of their administrative bureaucracy.

I am hopeful that our nation's colleges and universities will heed President Obama's words to cut costs—and will do so in the right ways. President Obama and his administration should next turn their attention to calling for reform of speech policies and practices on our nation's public campuses in order to defend First Amendment liberties and avoid expensive lawsuits. As we wrote in our open letter to President Obama last year upon his inauguration, a call from the nation's highest office for universities to uphold students' speech rights and to allow for the free exchange of ideas on campus would go a long, long way toward making this reform a reality. Here's hoping that it happens.

Permalink | E-mail comments | Posted by Azhar Majeed on January 29, 2010, at 10:27 AM

Alumni Democracy at Dartmouth College: Another Active Alum Seeks Trusteeship

January 28, 2010

This is the fourth entry in a five-part series on recent developments at Dartmouth College. Read posts from Monday, Tuesday, and Wednesday.

Joseph Asch, a 1979 graduate of Dartmouth College, saw a problem with his alma mater and endeavored to fix it. After auditing several courses—attending lectures, scrutinizing syllabi, and talking to students and instructors—Asch found that the quality of undergraduate writing was a common complaint among the Dartmouth professoriate. In response, the business owner and Hanover resident launched (and funded) the Departmental Editing Program in 1998, a free service for students that provided one-on-one tutoring to improve their writing skills.

Since 1990, in addition to starting the writing program, Asch has audited over 30 courses, contributed regularly to a student-initiated blog, and penned 30 opinion pieces in the student newspaper on topics ranging from speech codes to alcohol policies to administrative hiring. Now, after decades of advocating for students from the outside, Asch is seeking a seat on the college's Board of Trustees.

Throughout this week, I've been examining the recent struggle to maintain alumni democracy at Dartmouth. This struggle is the result of a 2007 decision to end more than a century of equal balance, or parity, between alumni-elected and administrative-appointed trustees on the college's governing board. For alumni like Asch, never one to mince words, the governance changes were the college President's attempt to build "a fortress around himself by appointing unquestioning supporters to important positions."

But the Dartmouth leadership has changed, and Asch is now looking to support first-year Dartmouth President Jim Yong Kim as a trustee who emphasizes fiscal responsibility, improving undergraduate education, and restoring parity on the board. (His campaign website is here.) Asch's path to trusteeship will be an uphill climb, however, as he must first gather 500 signatures before February 4 in order to appear on the ballot as a petition candidate.

It will be the first alumni trustee election since 2007, when the controversial governance reforms caused the college to put elections on hold. As discussed in yesterday's post, Petition Trustees were the unspoken targets of these reforms, as their view of fiduciary duty—not only trumpeting Dartmouth's virtues, but also publicly discussing instances where the college didn't live up to its professed values—clashed with the college's entrenched leadership at the time.

Though not always popular in Hanover, Asch's approach to oversight appears to be in line with the Petition Trustees. Take, for example, a February 10, 2009, opinion piece he authored in The Dartmouth. With proposed budget cuts from college leadership in the air, Asch examined the college's official statistics to shed light on how the financial situation had become so dire. He found that, from fiscal year 2007 to 2008, the expenditures on administration support increased 45%, or $14,790,000. Asch analyzed the college's personnel directory, too, and noted major increases over the past decade in administrative employees. "We have virtually the same number of students, faculty and alumni as we did 10 years ago," he wrote. "[W]hy do we need all these extra administrators?

As Petition Trustees can attest, asking these kinds of tough questions, even if they serve the college's best interest, can be greeted with personal hostility. "He's an unrelenting critic of Dartmouth, almost pathologically," John Mathias, the Association of Alumni President who voluntarily dismissed the Association's lawsuit to restore board parity, said in a September 2009 profile of Asch.

While Asch's budgetary analyses have irked some, so too has his unwavering stance on parity. "My sense is that there was an agreement in 1891 on parity—whether it was binding legal or gentlemen's agreement, I don't much care," Asch told The Dartmouth. "I think the Board is honor-bound to respect that agreement."

Asch's administrative-nominated opponent in the upcoming trustee elections, personal care company executive John Replogle, doesn't have a "yes or no" answer on parity. He told The Dartmouth that he would not decide until after the trustee election. Ballots will be mailed to Dartmouth's 69,000 graduates starting in late March.

What can those outside the Dartmouth community take away from Asch's experience? Before mounting his petition candidacy and using Dartmouth's unique open election system, Asch was like any other alumnus frustrated with the direction of his college.

But he actively tackled Dartmouth's problems, not waiting for administrators to address what professors saw as weakness in undergraduate writing skills. And he was willing to dig beyond the college's public relations and crunch the numbers, speak out on blogs, and write opinion pieces in the student newspaper. Simply put, he was willing to hold the college to the principles that he felt they should be embodying.

Though this didn't make him a popular figure among Dartmouth higher-ups, students recognized—and appreciated—his influential engagement. "[I]f Asch didn't care so much about this institution and want it to continue to excel in all facets of its existence," a student columnist wrote in October 2009, "he wouldn't bother to write or criticize."

Whether a majority of alumni share this student's opinion and are willing to vote for Joseph Asch as their trustee representative remains to be seen. But, win or lose, this active alum will continue to remind his alma mater that students—and their rights—come first.

Maria Romero contributed to this entry.

Permalink | E-mail comments | Posted by Kyle Smeallie on January 28, 2010, at 4:03 PM

University of Delaware Residence Life Case Featured in New AAUP E-Journal

January 28, 2010

FIRE's highly publicized case at the University of Delaware, where Residence Life officials implemented a harrowing ideological re-education program for all 7,000 students in the residence halls, has gotten even more publicity lately in an excellent essay (PDF) by University of Delaware professor Jan Blits. Writing for the American Association of University Professors' (AAUP's) new e-journal, the AAUP Journal of Academic Freedom, Blits focuses on the most illiberal, coercive, and downright scary elements of the program:

The program combined intimidation and humiliation, coercion and indoctrination, to inculcate a hardline ideological stance favored by ResLife officials. ... One Residence Life administrator said that the program was meant to leave "a mental footprint on [students'] consciousness." The University's own official materials described it as "a treatment": "through the ... curriculum experience (a treatment), specific attitudinal or behavioral changes (learning) will occur" (parentheses in the original).

One part of the program was one-on-one sessions in which Residence Assistants would interview newly arrived freshmen and have them fill out questionnaires about their personal thoughts and lives. "When did you discover your sexual identity?" one question asked. "When was a time you felt oppressed?" Staff members kept individual files on the students and their beliefs. The files were to be archived after graduation. Residence Assistants were also required to report their "best" and "worst" one-on-one sessions to their superiors, who, in turn, reported them (along with students' names and room numbers) in their annual review. When one student, asked about her sexual identity, replied, "That is none of your damn business," she not only became listed as the Residence Assistant's "worst"; she also received an "incident report," which is what a student gets for serious rowdy behavior. The same Residence Assistant's "best" one-on-one session involved a student who complained that she "grew up with a racist and opinionated father," who, "when [he] found out that she registered as a Democrat ... sat her down and had a talk with her as to why...she should be a Republican."

Another part of the program was group sessions. These sessions, requiring students to take public stands on controversial social and political issues, usually without the opportunity to explain themselves, singled out and shamed nonminority students for their "privilege" in American society. If students approved of gay marriage, for example, they were to stand on one side of the room; if they disapproved, on the other. No one was allowed to stay in the middle because, the students were told, the real world is polarized like this. Nor was anyone allowed to opt out. The group sessions, one Residence Assistant e-mailed her students, gave her "a chance to know how everyone's doing and where everyone stands on certain issues or topics. Not to scare anyone or anything, but these are MANDATORY!!" Where the one-on-one sessions intruded upon their private, even intimate, lives, the group sessions publicly pressured the students. The former violated the moral autonomy of students; the latter compelled them to conform.

Blits aptly describes the extensive re-education program under the heading "Residence Life as Soul-Craft." I describe most of the same details, and much more, in my article in FIRE's journal The Lantern.

Blits further explains that the whole educational program existed without the knowledge, vetting, or support of the university's own faculty, asserting an unprecedented level of administrative control over traditional faculty prerogatives. I encourage Torch readers to read the entire paper, and I congratulate the AAUP for launching its new e-journal.

Permalink | E-mail comments | Posted by Adam Kissel on January 28, 2010, at 2:04 PM

'Los Angeles Times' Covers FIRE's Fight for a Free Press at LACC

January 28, 2010

The Los Angeles Times highlights FIRE's and the Student Press Law Center's (SPLC's) opening shot in the battle for freedom of the press at Los Angeles City College (LACC), where the Collegian student newspaper has been repeatedly targeted for censorship and intimidated by administrators. The Times reports:

"No institution in SPLC's recent memory has attempted censorship as persistently or with as many diverse methods as Los Angeles City College," officials from the Student Press Law Center and the Foundation for Individual Rights in Education wrote in a recent letter to Mona Field, president of the Los Angeles Community College District's board of trustees.

The letter alleges that college administrators have engaged in a "pattern of interference" with the work of the campus' student newspaper, the Collegian, starting in August 2008. Among its concerns, the organizations wrote: College officials have made unacceptable demands of the paper's staff, tried to influence its content and proposed moving its reporters under administrators' supervision for "counseling" about their stories.

[...]

The two groups urged the trustees to take action to improve the climate for student journalists at the college and noted that the situation had also drawn the attention of state Sen. Leland Yee (D-San Francisco). They said they joined Yee in urging the college's president, Jamillah Moore, to comply with state laws protecting the students' rights to free expression.

Torch readers can read the letter, along with SPLC's press release, for more information.

While LACC President Jamillah Moore did not comment for the article, what the Times has to say about the comments of another senior LACC administrator is illuminating:

Student Services Vice President Lawrence Bradford acknowledged the tensions between student journalists and administrators, but called it a distraction as the college copes with accreditation and financial problems.

Ah yes, that pesky free speech thing—no time for that in this time of crisis! At least, that seems to be the protocol when the going gets tough in the California Community Colleges system. (Remember also the lengths to which Southwestern College went to stifle dissent in the wake of announcing unpopular budget cuts.)

If Bradford really sees the Collegian dispute as a "distraction" from more pressing financial matters, maybe he could also point out to Los Angeles Community College District (LACCD) Trustees President Mona Field the surreal waste of taxpayer money that is LACCD's fight to have its unconstitutional speech code upheld in court—where it has so far failed at every step of the process. Not to be deterred, LACCD has appealed their case to the Ninth Circuit Court of Appeals. As we've mentioned before, FIRE has filed a friend-of-the-court brief in response.

Continually funneling resources into defending a speech code put on trial after an intolerant LACC professor told a religious student to "Ask God what your grade is"? How's that for distraction—especially for a school going through "financial problems"!

Thanks to the Los Angeles Times for drawing attention to LACC's deplorable treatment of the Collegian, and for adding to the pressure for LACC to answer for its many transgressions.

Permalink | E-mail comments | Posted by Peter Bonilla on January 28, 2010, at 1:17 PM

Temple's First Amendment Problems Are Nothing New--And One Student Is Still Paying the Price

January 27, 2010

After reading about FIRE's latest run-in with Temple University, Sergeant Christian DeJohn of Wyncote, Pennsylvania—erstwhile student in Temple University's Master of Arts in Military and American History program and member of the Pennsylvania Army National Guard-could hardly hide his frustration. That's because Christian is all too aware of Temple's struggles with free speech on campus. In fact, Christian is still suffering as a result of the last time Temple tangled so seriously with the First Amendment, even though the court case that bears his last name is now cited across the country as a landmark victory for student free speech. 

Torch readers will remember Christian for his bravery in standing up for both his speech rights and those of his fellow students by filing a federal civil rights lawsuit against Temple in 2006. Christian's suit alleged that he had suffered retaliation from his professors for expressing his views in class and that Temple's sexual harassment policy unconstitutionally restricted student speech. Christian's constitutional challenge of Temple's sexual harassment policy proved successful; in August 2008, the United States Court of Appeals for the Third Circuit found Temple's policy to be unconstitutionally overbroad.

But despite the big win for the free speech rights of his fellow Temple students (as well as public university students in at least three states), Christian's personal retaliation claims were dismissed. As I explained here on The Torch last March:

After serving overseas in Bosnia-Herzegovina, where he suffered disabling hearing loss, Christian returned to his studies at Temple in 2003. At this point, Christian's professors were aware of his conservative political views, for Christian had asked not to receive the anti-war e-mails being sent around the History Department while he was serving his country abroad. Upon his return, Christian engaged in spirited political debate with his professor in his Comparative History of Modern War class. This kind of intellectual exchange is precisely what colleges are for, but Christian was quickly marked by his professors for his political views.

Soon enough, Christian suffered what seemed like obvious retaliation for daring to voice his feelings on controversial topics in class. Specifically, his master's thesis was trashed by the professor assigned to review it. Although FIRE, like the courts, does not typically weigh in on grade disputes, given the highly specialized expertise required to properly adjudicate the merits of competing grade claims, it is difficult not to see the incredibly unprofessional and nasty comments prompted by Christian's thesis as anything other than evidence of personal animus. Read Christian's complaint and judge for yourself:

[Professor Urwin] commented that the thesis was "agonizing" and that DeJohn must suffer from "Alzheimer's disease." Urwin also wrote notes in the margins of DeJohn's thesis. He wrote that DeJohn sounds like a "crackpot," that his arguments are "absurd," that the thesis read like "a comic book for 5-year olds," that it was "amateurish," that it was "exaggerated melodrama," "juvenile melodrama," and "juvenile rhetoric," "monotonous agony," "juvenile argumentation," a "hissy fit in print."

Professor Urwin further called Christian a "gnat," and his professors are on record as saying at the time that they hoped he would "self-destruct...."

As Christian's case proceeded, the district court ended up dismissing Christian's retaliation claims. Despite the fact that the presiding judge indicated orally that it certainly seemed as though the judgment of Christian's paper was politically motivated, and a court order notes that "[i]t is indisputable that, between November, 2001 and August, 2003, something happened that significantly altered Prof. Gregory Urwin's appraisal of Christian DeJohn," the lower court eventually found that the law on retaliation in this circumstance was not clearly established enough to pierce the professor's qualified immunity defense. As such, the retaliation claims were dismissed.

So while FIRE and the many students, faculty, and alumni concerned about speech on campus celebrated the Third Circuit's decision in DeJohn v. Temple University, Christian DeJohn himself was cast into a maddening academic limbo. Because he took a public stand on behalf of the right to speak freely on a public university campus, Christian soon found his progress towards his master's degree stopped dead in its tracks. Despite the fact that Christian had completed all 26 credits necessary for his degree while maintaining a 3.2 GPA, the new professor assigned to review the draft of Christian's thesis refused to do so. Indeed, that Christian would be unable to secure an honest review of the work he'd done on his thesis from any member of Temple's History Department quickly became apparent.

With his thesis stymied, in March 2009 Christian asked Temple Provost Lisa Staiano-Coico to review his situation and provide him a clear path to obtaining his degree. Five months later, Richard Englert, Dean of the Graduate School, finally responded with this note, denying Christian's request to either (a) have his thesis draft reviewed or (b) be allowed to take a comprehensive exam in lieu of a thesis. Dean Englert informed Christian that his draft thesis didn't meet Temple's requirements for a degree, apparently precluding any chance of review and revision, and that because "the department's curriculum has changed substantially since [Christian's] initial admission to the program," a comprehensive examination wouldn't be "workable." Englert did, however, end his letter to Christian with an unsubtle hint that he'd be better off abandoning hope of ever getting his MA from Temple, writing: "Sometimes, students who have accumulated credits at one institution find that they are able to transfer these credits to a program at another institution."

Christian is certainly assessing his options for completing his master's, but the fact is that he shouldn't have to leave Temple in order to do so. Temple's treatment of Christian following its defeat in court has been embarrassing—believe it or not, university counsel George Moore is actually on the record sneering that "[w]e don't give degrees to people who sue." That's a ridiculous posture for a public university to assume following an order from a federal appellate court to start taking the First Amendment seriously, and serves as evidence of a lasting hostility to Christian simply for standing up for his rights.

Through it all, Christian has grown ever more frustrated by Temple's hostile actions. In a letter to me this morning, he summarized his situation as follows:

Though I have completed all the required credits, registered and paid for "MA Thesis Guidance" from the Temple History Department for four semesters, and turned in the latest draft of my MA thesis in February 2006, Temple is refusing to even evaluate my work so I can complete my degree, and refusing to give me the standard comprehensive exam to graduate, because, they claim, they changed the curriculum after I completed all my requirements for the MA.

Christian also points out the cruel irony of his situation when juxtaposed against the ringing public affirmations of the value of academic freedom made by Temple President Ann Weaver Hart throughout her career. In her inaugural address as President of the University of New Hampshire in 2002, Hart stated:

To sustain an academic setting in which these initiatives can be successful, the University must be an open community free of prejudice. The fundamental principles of academic freedom, and the inquiry and scholarship they were meant to preserve, also protect people whose person and ideas differ substantially from either the mainstream or the fashionable.

Sounds like the kind of university president who would see the inherent problem in stonewalling a student who brought a successful lawsuit against the school's unconstitutional speech code, right? Either this willingness to protect people whose ideas "differ substantially from either the mainstream or the fashionable" evaporated by the time she arrived at Temple, or Hart's commitment to respecting uncommon views on campus isn't worth much. Given the fact that she trumpets her interest in academic freedom on her university biography, and has stated in a 2006 interview that "it is very important that we remember that every human being has speech rights, free speech rights," I'm guessing it's the latter.

Wait, there's more. Here's Hart in 2007:

Temple is committed to academic freedom, and we assert that free inquiry and free expression are indispensable to the transmission of knowledge, the pursuit of truth, the development of students, and the general well-being of society.

Meanwhile, as Hart proclaims the value of free speech, Hart's Dean of the Graduate School tells Christian, in so many words, to take a hike.

So, as the latest free speech controversy hits Temple, it's important to bear in mind that one student is still paying for the university's First Amendment problems—literally. Christian's still making student loan payments for the coursework he completed towards a degree that Temple seems determined to withhold from him. And for what other reason, save the fact that he had the courage to stand up for himself and his fellow students?

Permalink | E-mail comments | Posted by William Creeley on January 27, 2010, at 4:56 PM

Alumni Democracy at Dartmouth College: A New Chapter?

January 27, 2010

This is the third entry in a five-part series on recent developments at Dartmouth College. See posts from Monday and Tuesday.

A day after the selection of former Harvard professor and global health leader Jim Yong Kim as Dartmouth College's 17^th President in March 2009, the student writers of "Generic Good Morning Message," a satirical news-of-the-day e-mail listserv on the Hanover campus, turned the announcement into a parody of the college's first Asian-American president.

For some, the ethnic stereotypes in the tongue-in-cheek e-mail went too far, generating controversy on campus and attracting national media coverage. The initial reaction resembled other, all-too-typical FIRE cases.

But this time, censorship did not win the day. President-elect Kim, in a campus-wide e-mail, sought understanding for the e-mail's author: "[W]e all make mistakes - especially when we are young." And in subsequent open meetings on campus, administrators reminded students that the "nature of the speech in the e-mail does not warrant College disciplinary action" because Dartmouth "does not have a speech code," The Dartmouth reported.

Four years prior, the situation might have ended differently. That's because Dartmouth's speech codes (PDF), shaped in part by controversial statements against free expression from then-President James Wright, remained in effect until 2005. Vocal public advocacy from concerned graduates and "outsider" Petition Trustees, elected by alumni as their representatives on Dartmouth's governing board, finally pushed administrators to change the policy regulating student speech in May 2005.

Without this change in policy, the satirists behind "Generic Good Morning Message" could have been punished for their expression. Instead, with open campus meetings and other dialogue on race and diversity at Dartmouth, community members who objected were able to publicly air their disagreements. Speech was answered with more speech; the free marketplace of ideas functioned as intended.

Repealing the campus speech code was far from the only means by which Petition Trustees helped to improve the college. They pushed to refocus Dartmouth on undergraduate education by creating permanent academic committees on the board and leading the calls for additional faculty hiring. They also scrutinized spending patterns, voicing concern at what they saw as unnecessary renovation projects or administrative hiring that outpaced the college's earnings.

These Petition Trustees knew why they had bested their administrative-nominated opponents in four straight alumni elections for seats on the Board of Trustees. It was "an alumni response to an administration that has been increasingly making questionable decisions," Todd Zywicki told The Dartmouth after he and fellow petition candidate Peter Robinson were elected in 2005.

Questioning the status quo and exercising critical oversight caused Petition Trustees, at times, to be at loggerheads with the administrative and board establishment. So when a board-commissioned review recommended ending the century-long balance between alumni-elected and administrative-appointed trustees, there was little doubt of the intended target. "The heart of this conflict lies in the history of recent trustee elections," according to a news article in The Dartmouth written after plans were approved to end board parity.

In other words, when the board and administration didn't agree with the alumni's trustee choices, they moved to diminish the alumni voice by changing the structure of the board. (Tuesday's post detailed how the struggle to restore parity has played out in the courtroom; Monday's post touched upon why this balance has been historically important.)

While structural board changes had the effect of lessening alumni input, so too did the actual removal of a Petition Trustee. In April 2009, the "usually routine" process by which the board reelected trustees became an opportunity for the board majority to eliminate a dissenting voice. Without giving Petition Trustee Zywicki a reason for his dismissal—hiding behind "confidentiality" requirements—the board denied his reelection.

Students criticized the decision, and Petition Trustee T.J. Rodgers wrote that the removal was a warning to "petition trustees—and any others tempted to express independent views—not to cross the party line."

These controversies are no doubt important in understanding where Dartmouth currently stands. But the point of this series is not rehash the past. As a January 22 staff editorial in The Dartmouth indicated, the campus is ready to move on from these divisive governance disputes. The lack of a definitive judicial resolution, however, serves to discourage reconciliation.

What it does is put pressure on first-year President Kim to take a stand on an issue he had no role in creating. He has already shown he is different than his predecessor in at least one regard. We will now see whether President Kim decides to embrace the strong alumni role that has, for centuries, set Dartmouth apart from its peers.

Permalink | E-mail comments | Posted by Kyle Smeallie on January 27, 2010, at 4:46 PM

Temple Misunderstands First Amendment Obligations, Continues to Seek Extra Security Fee from Student Group

January 27, 2010

Temple University has addressed FIRE's concerns over the university's decision to charge $800 in extra security fees for a presentation by controversial Dutch politician Geert Wilders this past October, hosted by the student group Temple University Purpose (TUP). Unfortunately, in her January 21 letter—arriving the day after FIRE's press release criticizing the action—Temple Associate General Counsel Valerie I. Harrison confuses binding Supreme Court precedent, reveals an arbitrary decision-making process, and misrepresents TUP's "request" for extra security as giving Temple carte blanche to pass the cost of security for the event on to the group. FIRE responded yesterday with a second letter to Temple President Ann Weaver Hart.

As we've done with multiple public universities recently, FIRE plainly laid out the Supreme Court precedent that binds the university not to charge groups like TUP extra security fees on the basis of the content of a speaker's expression. In FIRE's January 4 letter Adam wrote:

The Supreme Court addressed precisely this issue in Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-135 (1992), when it struck down an ordinance in Forsyth County, Georgia, that permitted the local government to set varying fees for events based upon how much police protection the event would need. Criticizing the ordinance, the Court wrote that "[t]he fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit." In deciding that such a determination required county administrators to "examine the content of the message that is conveyed" (citation omitted), the Court stated that "[l]isteners' reaction to speech is not a content-neutral basis for regulation. ... Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob." (Emphasis added.)

This reminder was enough to persuade the University of Colorado at Boulder, University of Massachusetts Amherst, University of California, Berkeley, and University of Arizona to do the right thing and eliminate extra security fees charged to student groups, some of which reached into the thousands of dollars. Harrison, however, contended that not all—only some—of the $800 charged to TUP counted as extra. Further, Harrison argued that at any rate, Temple was giving TUP a break because the total cost for securing the event was far higher, and Temple would have been within its rights to shift the entire charge onto TUP. She wrote:

TUP was initially charged $576 for the event, the standard charge for an event of this type regardless of program content. A charge of $224 was assessed for the additional security requested by TUP even though the cost of the requested added security amounted to more than $6,000. ... As you know, the $6,000 could have legally been imposed upon TUP because it was based not on program content, but upon the request of the student organization.

When weighing legitimate requests for extra security, Temple can come to its own conclusions as to what is and is not needed, and charge student groups the balance if their request goes above and beyond what Temple deems necessary. For example, if a student group invites, say, celebrity chef Rachel Ray to campus and requests metal detectors, a bomb squad, and a sniper detail for security—well, in the absence of specific intelligence indicating a real threat, the hosting college doesn't have to meet these unreasonable (and expensive) security demands. But if a school agrees and complies with a student group's request for extra security because of the hostile mob the speaker may draw, the school can't then pass the fee on to the group.

But that's exactly what Temple did: it agreed with the need for extra security, and then tried to pass it on to TUP. In paying what "amounted to more than $6,000" for TUP's event, Temple accepted that such security was required for the event. So no, Temple can't charge the whole $6,000 fee to TUP, as Will points out in yesterday's letter to President Hart: 

Temple is prohibited by the First Amendment from imposing a financial burden on TUP for hosting a controversial speaker whether or not TUP requested the extra security, since that security was ultimately deemed necessary by Temple. Otherwise, Temple would be free to impose prohibitively expensive security fees on student groups hosting controversial speakers based solely on the university's perception of the need for security, thus unfairly penalizing student groups for inviting certain speakers to campus.

So after the "standard" $576 fee, where did that last $224 come from? Will illustrates Temple's arbitrary reasoning:

Harrison asserts that the actual cost of the added security "amounted to more than $6,000." Although TUP was charged $576, "the standard charge for an event of this type regardless of program content," and subsequently paid this amount to Temple, TUP later received a bill for $1,000 minus a 20% discount—much less than the actual cost. Subsequently, TUP learned that the bill was in error in that it did not show the $576 payment. Temple still seeks the $224 balance for an unexplained portion of the extra security provided. Temple administrators thus have acted arbitrarily and without explanation in charging TUP for the extra security.

And as he points out, this too is at odds with the precedent set forth in Forsyth:

The Forsyth Court noted that "[a] government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." Forsyth at 130 (emphasis added) (internal quotation marks omitted). In Forsyth, "the administrator based the fee on his own judgment of what would be reasonable." Id. at 132 (emphasis added). The Court found that the county's implementation of the ordinance showed no "narrowly drawn, reasonable and definite standards guiding the hand of the Forsyth County administrator." Id. at 132-33 (citation omitted) (internal quotation marks omitted). The Court found that "[n]othing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees." Id. at 133 (emphasis added).

Temple, at least, has offered to waive the final $224 if TUP is unable to pay it. This belated benevolent act, however, does little to answer the fact that Temple believes it has the right to charge the extra fee to TUP, and does nothing to guarantee that it won't do the same thing to other Temple student groups in the future. Until Temple revises its policies to ensure that student groups won't be charged extra fees for security because of the speaker's expression, and removes from administrators' hands the nearly unbridled discretion to levy such fees, FIRE will continue to press Temple for reform.

Permalink | E-mail comments | Posted by Peter Bonilla on January 27, 2010, at 4:02 PM

Exciting Job Opportunity: FIRE Offers First Video Fellowship

January 27, 2010

Thanks to our donors, FIRE has fulfilled a generous $25,000 matching grant from Raymie Stata and Kimberly Sweidy and is now able to hire FIRE's very first Sweidy Stata Video Fellow. We are seeking one energetic full-time employee to play an integral role in forwarding FIRE's mission using the canvas of video and the paintbrush of cutting edge technology. The Sweidy Stata Video Fellow will be charged with the duty to create several different, high quality documentary-style films about FIRE's cases and mission and will play a key role in FIRE's outreach and publicity efforts. To accomplish the task of making dynamic and gripping video content for both online and traditional distribution, the Sweidy Stata Video Fellow will have to work with a broad cross-section of FIRE's staff who work on many varying programs. This is a great opportunity for someone looking to expand their documentary portfolio and get involved with important issues effecting our country's colleges and universities. For a full description of what the job will entail, visit FIRE's job page.

Permalink | E-mail comments | Posted by Erin Osovets on January 27, 2010, at 10:44 AM

Alumni Democracy at Dartmouth College: Battle for Board Balance Enters the Courtroom

January 26, 2010

This is the second entry in a five-part series on recent developments at Dartmouth College. Read Monday's post here.

It was the fall of 2007, and Dartmouth's governing board had just ended more than a century of equal balance between elected "Alumni Trustees" and appointed "Charter Trustees." With negotiations to restore board parity at an impasse, the college's Association of Alumni was left with a difficult choice: accept its members' diminished role in overseeing Dartmouth, or bring the case to court.

In October 2007, the alumni association chose legal action, claiming in the Grafton County Superior Court that the trustees were contractually bound by an agreement made in 1891 to honor board parity. For these graduates, settling the matter in court was a last-resort effort to restore their effective voice on the board—a voice that, as detailed in yesterday's post, was instrumental in abolishing the school's speech code in 2005, to name just one example.

The college, in response to the lawsuit, claimed that the 1891 Agreement was a board resolution, not a legally enforceable contract, so the board could modify its membership at its own discretion. In denying this request to dismiss the case, however, a New Hampshire judge wrote (PDF) that "sufficient evidence" supported the claim that the 1891 Agreement was a contract. He specifically noted that parity was maintained through two previous board expansions.

After clearing this initial legal hurdle, the alumni association and the college prepared for trial. In the meantime, though, the alumni association held its annual elections to determine leadership positions in the organization. A so-called "unity" slate, opposed to the lawsuit as a means to restore parity, squared off against a "parity" slate that saw the lawsuit as an unfortunate necessity. It became clear that the winner of this election would control the alumni's position in the lawsuit.

With roughly 60% of the alumni vote, the "unity" slate was victorious, and it moved to withdraw the lawsuit—despite the alumni's preliminary victory—in June 2008. (Though it ended the lawsuit, the alumni association leadership promised "constructive dialogue with the trustees" in order to restore parity. Two years later, the promise remains unfulfilled.)

But the legal struggle for parity has continued. In September 2009, a group of seven individual Dartmouth alumni asked the court to re-open the case (PDF). These graduates are challenging the college's contention that the lawsuit was conclusively ended with the alumni association's voluntary dismissal. (Harvey Silverglate, FIRE's Chairman, is representing Dartmouth alumnus and former Petition Trustee Todd Zywicki and has filed a friend-of-the-court brief in support of preservation of parity. Harvey is acting in his capacity as a private lawyer, not as a FIRE board member.)

In the December 2009 oral argument, the college's counsel focused on whether the 1891 Agreement is a legally binding contract and whether individual alumni can enforce it, while lawyers for the alumni group also discussed the case's implications in terms of beneficial public policy. Zywicki's friend-of-the-court brief expands upon how the case is crucial to active alumni who exercise critical oversight at colleges and universities across the country.

Earlier this month, however, Judge Timothy Vaughan decided to dismiss the lawsuit, stressing that the prior litigation precluded a rehearing and leaving aside the important public policy considerations.

Finding fault in Vaughan's opinion, the alumni plaintiffs filed a motion yesterday for the judge to reconsider the case. Without getting into the technical details, the alumni dispute what Judge Vaughan viewed as their apparent "admission" that alumni, in effect, could not enforce the 1891 Agreement after the association dismissed the first lawsuit.

The motion for reconsideration also contends that the case deserves to be decided on its merits. Though more than 27 months have passed since litigation began, there has yet to be a definitive judicial ruling on whether the 1891 Agreement is an enforceable contract, and the continuing debate has arguably distracted the college from other pressing concerns.

Perhaps, at the end of the day, all this legal wrangling misses the point. As Zywicki wrote in The Dartmouth:

The Board should honor the spirit and wisdom of this partnership and appreciate the benefits it has produced, rather than treating alumni as adversarial parties to an arms-length contractual negotiation governed by only the minimum of what may be legally mandated.

Yet such was the result for the steadfast graduates who refused to stand idly by as Dartmouth charted what they deemed an unworthy course—even if it required taking their alma mater to court. It's a partly cautionary, partly motivational story for any alumnus willing to speak up and hold his or her university accountable.

Permalink | E-mail comments | Posted by Kyle Smeallie on January 26, 2010, at 4:40 PM

Michigan State University Demands That Personal Opinions Stay Off Campus E-mail

January 26, 2010

After FIRE notified Michigan State University (MSU) President Lou Anna K. Simon that MSU remains on FIRE's Red Alert list because of its extremely restrictive new "spam" policy, President Simon responded by defending the policy. "The University's email services are not intended as a public forum for the expression and dissemination of personal opinions," Simon wrote in her response. "Rather, other means exist within the University community for the expression and dissemination of personal opinions."

MSU used a similar policy last academic year to find a student government member guilty of "spamming" after she e-mailed a number of professors about controversial changes to MSU's academic calendar.

Within two days of her e-mails, MSU Network Administrator Randall J. Hall summoned the student, Kara Spencer, to a mandatory "investigation" meeting. Hall alleged that she had violated as many as five MSU policies by "spamming" the faculty members. Despite the fact that her e-mail was timely, carefully targeted, and concerned a campus issue, she was found guilty of violating MSU's "spam" policy.

In response, thirteen civil liberties organizations, led by FIRE and the Electronic Frontier Foundation (EFF), wrote an open letter to Simon, challenging both the policy and its application against Spencer. In response to the letter, public pressure, and an appeal filed by Spencer, the University announced that the charges had been "withdrawn."

But MSU then made its unconstitutional e-mail usage policy even worse, essentially taking away the forum for personal opinions that every MSU student (and a very high percentage of college students in America) expects and is used to regarding campus e-mail. If you try to cold-contact as few as 11 people over two days to alert them to a campus issue, you can be found guilty of "spamming" at MSU.

There is no comparable policy, I believe, about cold-calling people, which is much more annoying than an easily discarded e-mail. Besides, this line from the Supreme Court in Consolidated Edison Co. v. Public Svc. Comm'n, 447 U.S. 530, 542 (1980), is worth remembering: "The customer of Consolidated Edison may escape exposure to objectionable material simply by transferring the bill insert from envelope to wastebasket." The burden on the recipient of unwanted e-mails is far less than for the recipients of unwanted snail mail considered in that case.

MSU's policy is impossible to enforce fairly in practice and is likely to lead to another unjust prosecution.

Permalink | E-mail comments | Posted by Adam Kissel on January 26, 2010, at 2:41 PM

University of Louisville Responds Admirably to FIRE Concerns about New Policies

January 25, 2010

Back in June, as Will wrote, the University of Louisville was inviting comment about proposed changes to the school's Code of Conduct, including a new Values Statement. FIRE was invited to review the drafts of the new policies by a faculty member concerned about possible violations of individual rights. We communicated a few comments and concerns to the university, and we learned today that essentially all of our concerns have been addressed in the new campus-wide Code of Conduct.

Most of all, we recommended that the university follow Penn State's lead in separating aspirational values from specific standards of conduct:

Louisville can [include] language indicating to students that the Values Statement is purely aspirational and does not represent official policy. Indeed, Penn State did exactly that to remedy a similar problem earlier this year. FIRE wrote Penn State President Graham Spanier to point out the ambiguity of the school's Penn State Principles, which required students to "respect the dignity of all individuals within the Penn State community." President Spanier acknowledged the problem and added additional language to the Principles to clarify that they were aspirational and not mandatory commitments.

We are very pleased to report that Louisville has essentially done just as we recommended, separating its "Values" statement from its "Standards of Conduct" section. Louisville should be congratulated for doing so. This separation helps students and faculty members understand that they cannot be punished simply for failing to demonstrate, for instance, sufficient "[e]nthusiasm for discovery and innovation."

A remaining ambiguity here, however, is that the "Values" statement is placed in a section called "Guiding Principles," which more closely links the values to the standards of conduct than a purely aspirational statement might have done. Indeed, there is a second statement of "Ethical Considerations"—placed in the "Guiding Principles" section rather than the "Standards of Conduct" section—which warns of "disciplinary action" for violations. While there is no such warning in the "Values" statement, there is a slight ambiguity in the structure of these sections that might lead individuals at Louisville to fear punishment for holding the "wrong" values.

FIRE also registered concerns about two of the values, namely, "[r]espect for diversity in all its human dimensions" and "[c]ivility in our interactions." Last year, Will wrote about these policies:

While likely well-intentioned, this statement unfortunately is ambiguous about whether or not students will be required to conduct themselves with "civility" and "respect for diversity." As a public university, Louisville cannot require that students do either; indeed, the vast majority of instances of "uncivil" or "disrespectful" speech are protected by the First Amendment.

[...]

While the university has a right, as a public employer, to require faculty members to comport themselves in a reasonable and professional manner, a vague, open-ended "civility" requirement like this could potentially be used to silence certain faculty members in their interactions with students and colleagues, particularly if their speech is unpopular. It is unfortunately not difficult to imagine an academic argument over a particular theory or interpretation of data prompting a charge of "disrespect" or "incivility," thus possibly resulting in unjust and unconstitutional punishment (not to mention short-circuiting a potentially useful exchange of ideas).

The wording of both of these values has now been changed in a way that permits a wider variety of values to be acknowledged.

Louisville also has changed the "[r]espect for diversity" value to read "[r]espect for diversity and all individuals regardless of position," which notably removes the idea that each person at Louisville should value "all" the dimensions of diversity. A faculty member who, for instance, does not respect cultures that are run by theocracies should have nothing to fear about stating that, in the professor's view, all cultures are not equally worthy of respect.

In addition, Louisville changed the word "civility" to "professionalism" in the other value, tracking FIRE's advice above.

As for the requirement to be "civil" in the Standards of Conduct, Will wrote:

Again, the fix here is clear: Louisville's Code of Conduct must make plain that with regard to faculty, the requirement to be "respectful" and "civil" can in no way be interpreted to supersede the university's clear guarantee of academic freedom for faculty, which is contained elsewhere in the code.

I think that Louisville attempted to respond to this concern with a disclaimer near the top of the overall document is intended to signal that the requirement does not apply in any unconstitutional way to faculty members and students:

This Code reflects Board and University policies and procedures. It does not create additional or different rights or duties.

This "savings" clause, if that's what it is, is probably well-intentioned, too, but it doesn't quite do the job. My colleague Azhar Majeed points out the deficiencies of "savings" clauses in his article in the Georgetown Journal of Law & Public Policy, "Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes." The article is reprinted in FIRE's journal, The Lantern, here.

All told, however, we are quite pleased that Louisville did such a good job of responding to FIRE's concerns.

Permalink | E-mail comments | Posted by Adam Kissel on January 25, 2010, at 4:57 PM