In Reversal, UCLA Temporarily Halts Retaliation Against Whistleblowing Professor
September 2, 2010
Today's press release announces that the University of California, Los Angeles (UCLA) has temporarily halted its violations of the free expression rights of Department of Environmental Health Sciences (EHS) faculty member Dr. James Enstrom. The faculty of EHS refused to reappoint Enstrom after he engaged in successful whistleblowing against a member of the department--and after many years of disagreement between Enstrom and some of his colleagues over research on air pollution. After UCLA told Enstrom he was being let go because his controversial research failed to accord with the department's "mission," Enstrom turned to FIRE for help.
Enstrom has worked at UCLA as a researcher and professor since 1976, being rehired consistently each year. Since 2004, he has been rehired in UCLA's Department of Environmental Health Sciences. Over the years, he and a few of his colleagues have sometimes disagreed strongly about research on environmental health issues-for example, on the extent of the threat to public health posed by certain air pollutants, a topic of Enstrom's research which has been the subject of intense debate in California.
Enstrom also was a successful whistleblower whose activism led to fellow EHS faculty member John Froines being replaced on a panel for the California Air Resources Board. Several members of the panel had been serving beyond the three-year legal limit on their terms of office, and Enstrom's whistleblowing provided part of the grounds for a lawsuit on the issue.
UCLA's retaliation against Enstrom became apparent in December 2009, when he received a financial review of his various research funds. Enstrom discovered that UCLA had cut off his salary fund and charged his salary to his research funds without his knowledge or permission, causing his research funds to be overdrawn. Enstrom asked for but has not received a full accounting of UCLA's disbursements of his funds.
Enstrom was not told about these changes until it was too late. In February 2010, Environmental Health Studies Chair Richard J. Jackson informed Enstrom that since his research funds were overdrawn, UCLA was laying him off. Enstrom countered that UCLA had reasonable ways of resolving the issue, and UCLA officials appear to have abandoned this initial attempt at severing Enstrom's employment.
On June 9, 2010, however, Enstrom learned of further retaliation after the EHS faculty (including Froines) voted not to rehire him, telling him that "your research is not aligned with the academic mission of the Department." The faculty also told Enstrom that he had not met EHS' vague and previously unmentioned "minimum requirements." He was again "indefinitely laid off" effective June 30, 2010, but the layoff timeline violated UCLA's policy requirement of 60 days' notice.
Enstrom appealed on June 15. On June 30, Associate Dean for Academic Programs Hilary Godwin extended his appointment for 60 more days to August 30. Godwin also, without explanation, changed the action from a layoff to a non-reappointment. Enstrom appealed again on July 14, but on July 29 Godwin rejected his appeal. Godwin again cited Enstrom's failure to properly align his research with the "mission" of his department.
Enstrom again challenged his non-reappointment, with a formal grievance on August 12 and a whistleblower retaliation complaint on August 27. Enstrom has consistently argued that his research on environmental health is fully aligned with EHS' research mission of furthering "extremely interdisciplinary" research "at the interface between human health and the environment." He also has demonstrated that his research output has been robust.
FIRE wrote UCLA Chancellor Gene D. Block on August 26, 2010, pointing out that it is unconstitutional to refuse to rehire a faculty member because of his protected expression.
On August 30, Enstrom learned in an e-mail from Associate Dean for Administration Kathleen Kiser that his appointment was again being extended to March 31, 2011, pending the outcome of his formal challenges regarding his treatment.
We are happy to report this reprieve granted by UCLA to Enstrom, but as noted in our press release, the school still has more work to do. As Adam stated, "UCLA has quite a long way to go to demonstrate that such outrageous treatment of one of its longest-serving faculty members is both legal and moral. FIRE and the public are watching." Indeed.
Permalink | E-mail comments | Posted by Azhar Majeed on September 2, 2010, at 4:52 PM
Red Alert at Tufts University: Satire as "Harassment"
September 2, 2010
On Tuesday, FIRE announced that for the third consecutive year, we've purchased a full-page advertisement in U.S. News & World Report's college rankings issue chastising the six schools on our Red Alert list. Inclusion on this list is not grounds for celebration. To the contrary, Bucknell University, Michigan State University, Brandeis University, Colorado College, Johns Hopkins University, and Tufts University should be ashamed of this dishonorable designation, because FIRE reserves a place on our Red Alert list for those schools that have demonstrated an egregious disregard for student and faculty rights.
Part of the reason we publicly shame Red Alert schools with the U.S. News ad is to warn prospective students and their families that attending these institutions is a risky proposition, since protected expression can serve as grounds for punishment and basic rights aren't respected on campus. But the other reason we take out the ad is to let the schools know once again that being on the Red Alert list has consequences--and that there is a simple way to extricate themselves from our doghouse, if they so choose. For example, we happily removed former Red Alert school Valdosta State University from our list when, under new leadership, the school dismantled one of the worst free speech zones FIRE has ever seen. Each of the six remaining schools could just as easily remove themselves, and we're here to tell them how.
Adam covered Michigan State University yesterday, and today, I'll cover Tufts University.
Tufts is a founding member of our Red Alert list. How did it earn this dubious distinction? Well, let us count the ways--and then we'll tell Tufts how to rectify its errors.
As a quick look at our Tufts page will tell you, the school is a recidivist when it comes to violating rights on campus, racking up not one, not two, not three, but four FIRE cases in our ten years of existence. First, there was the violation of freedom of association that occurred when an evangelical student group was derecognized because it wanted to make sure its leadership shared the group's worldview--a violation FIRE helped overturn. Then there were the charges of "sexual harassment" against the conservative student newspaper The Primary Source after the paper published an editorial cartoon that an undergraduate found unflattering. Eventually, those charges were dropped--again, under pressure from FIRE.
But it's the more recent crackdown on free speech at Tufts that earned the school its charter membership on the Red Alert list. Once again, The Primary Source (TPS) was involved, this time publishing a satirical Christmas carol entitled "O Come All Ye Black Folk" in an issue published in December 2006. The piece, written to the tune of "O Come, All Ye Faithful," contains biting criticism of Tufts' consideration of race in admissions decisions--the refrain is "O come, let us accept them"--and soon sparked outrage and discussion on campus, which was presumably part of the point. Following the campus-wide dialogue the piece provoked, TPS voluntarily issued an apology. Had the story ended here, this result would have been fine: provocative speech was answered by more speech, not punishment; TPS' apology was of its own accord, not a condition of punishment or other formal coercion.
Unfortunately, things did not end there.
In April 2007, TPS ran an article satirizing "Islamic Awareness Week," which included a list of true but unflattering facts about Islam and radical Islamic terrorism. In response, offended students filed disciplinary charges against TPS, alleging that the article about Islam and the satirical Christmas carol constituted "harassment" and created a "hostile environment."
Both the carol and the article are precisely the kind of spiky, sharp-edged satire that one might expect at a school that "encourages members of the university community to develop the ability to exercise critical judgment, and supports the rights of individuals to express their views and opinions," as Tufts does. But despite both this and other laudable promises of free speech made by Tufts to its students, the charges against the The Primary Source were somehow not dismissed outright. Instead, shockingly, Tufts' Committee on Student life found that TPS was guilty of violating the school's harassment policy.
Specifically, the Committee held that the carol targeted African-American students for "ridicule and embarassment" on the basis of their race, "intimidated them," and also "had a deleterious impact on their growth and well-being on campus." As for the Islamic Awareness Week article, the Committee held that it "targeted members of the Tufts Muslim community for harassment and embarrassment, and that Muslim students felt psychologically intimidated by the piece." As punishment, TPS was banned from publishing anonymous or unsigned articles, and the Committee urged the student government to consider both derecognizing the paper and cutting its funding.
Confronted with punishment for protected speech, TPS contacted FIRE. We wrote Tufts President Lawrence Bacow, pointing out that finding TPS guilty of harassment for publishing satirical articles violated the promises Tufts made to its students. As we wrote:
Printing a parody, no matter how objectionable to some, is in no way tantamount to "harassment." As the Office for Civil Rights of the United States Department of Education stated in a July 28, 2003 letter to college administrators, harassment is legally understood to require "something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." Rather, to legally constitute "hostile environment harassment," the behavior in question must be "sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student's ability to participate in or benefit from an educational program." Clearly, the parody here in question could not possibly be construed as an example of "hostile environment harassment." Offended students, after all, were under no duty to read TPS.
The ACLU of Massachusetts followed with a letter of its own soon thereafter, also blasting Tufts for its illiberal decision. Negative press coverage from the New York Post, FOX News, and The Washington Times soon followed. And check out FIRE President Greg Lukianoff's open letter to New York City Mayor Michael Bloomberg, who gave the commencement address at Tufts that spring but failed to address the fact that TPS had been found guilty. (Bloomberg instead characterized Tufts' actions as "respect[ing] the rights of others to express themselves.")
After TPS appealed the decision over the summer of 2007, Tufts eventually lifted the prohibition against anonymous speech, but inexplicably decided not to strike the "harassment" finding. Bacow finally issued a comment on the case, paying lip service to the importance of "defending individual liberties," but didn't see fit to rescind the harassment verdict.
Making matters still worse, in September 2008, Tufts penned a "Draft Declaration on Freedom of Expression and Inquiry" that read more like a laundry list of types of speech students couldn't engage in than the affirmation of free speech a liberal education requires. The following month, FIRE responded to the draft with an extensive statement expressing our grave concerns about the proposed new speech code. As we wrote:
A revised draft Declaration was released by the university in April 2009, and the final Declaration was approved by the Board of Trustees in November of last year. While the statement is an improvement from the initial draft (and that isn't saying much) it still leaves a lot to be desired. It's riddled with undefined commitments to elusive concepts like "basic respect" and "ethical obligations" that could surely be cited to suppress expression, were the administration to deem it necessary. As FIRE's Justice Robert H. Jackson Legal Fellow Erica Goldberg, a Tufts alumna, wrote in response: "Although Tufts' declaration and its reaction to The Primary Source's parodies caused students to discuss the ideals of free speech on campus, we fear those debating the issue may be unduly constrained by the vague command to 'respect the human dignity of others.'"Rather than being a broad statement about the value of free inquiry on campus, the draft Declaration appears squeamish about First Amendment principles. The draft Declaration would subject Tufts community members to much more stringent regulations on expression than would ever be permissible on public campuses. It sends the message that the university is no longer prepared to cope with the challenges that come with unfettered expression, and it raises the question of why Tufts believes that it cannot succeed in its mission while meeting the same standards for freedom of expression by which public universities must abide.
So how can Tufts erase the stains from its reputation as a prestigious university, make clear that it values free expression, and remove itself at long last from FIRE's Red Alert list? The answer is simple: Rescind the harassment finding against The Primary Source. A relatively quick fix, to be sure, but that admission of error would send a signal to current and future Tufts students that free expression is to be celebrated and protected, not punished. If Tufts has the courage of its convictions, it will finally reverse its mistake. Until then, however, the Declaration's recognition that "[f]reedom of expression and inquiry are fundamental to the academic enterprise" is worthless and Tufts remains on our Red Alert list. Until we see a change, the school has a date with next year's college rankings issue of U.S. News & World Report.
Permalink | E-mail comments | Posted by William Creeley on September 2, 2010, at 4:38 PM
Speech Code of the Month: University of Massachusetts Amherst
September 2, 2010
FIRE announces its Speech Code of the Month for September 2010: University of Massachusetts Amherst.
UMass Amherst has a policy on rallies that flagrantly burdens student speech on the basis of viewpoint, with total disregard for the public university's obligation to uphold the First Amendment rights of speech and assembly. The policy defines rallies as "events where people freely assemble around a common cause(s) and/or point(s) of advocacy." This broad definition would appear to encompass any event, no matter the size, in which two or more people join together to publicly express an opinion.
There are several problems with the general section of the "Rallies" policy. First, rallies must be scheduled at least 24 hours in advance, which limits students' ability to respond quickly to unfolding events on campus or nationwide. Sometimes the immediacy of a message is part of its efficacy, and requiring prior registration deprives students of the ability to convey their message with as much urgency as they may feel.
Second, the policy provides that "[d]uring class hours, rallies can only be held on the Student Union steps (either front entrance or south steps)." While the university may craft narrow time, place, and manner regulations to prevent disruption of the educational environment, this is not such a regulation. A look at a campus map reveals that the Student Union steps are only a tiny portion of UMass' campus, and there appear to be numerous other areas where students might demonstrate
without interfering with classes in session. Limiting student rallies—particularly when the term "rallies" is defined so expansively—to just one tiny area of campus, even during class hours, is unreasonable, overly restrictive, and a severe infringement on students' First Amendment rights.
These two problems, however, pale in comparison with the section of the policy entitled "Controversial Rallies." That section provides that "[s]pace for controversial rallies must be requested 5 working days prior to the scheduled date" and that "[s]pace may only be reserved from 12 noon to 1 pm." The policy also requires that when holding a controversial rally, "The sponsoring RSO [Registered Student Organization] must designate at least 6 members to act as a security team." In other words, student groups wishing to publicly express a controversial opinion on campus must give at least five days notice, may only do it on one small area of campus for one hour a day, and must be willing to put themselves in harm's way by acting as their own security in order to do so. And of course, the policy leaves the term "controversial" completely undefined, giving the UMass administration unfettered discretion to label any potentially unpopular expression with this designation.
This utter disaster of a policy completely violates UMass students' First Amendment rights to free speech and assembly--rights which UMass, as a public university, is legally bound to uphold. For this reason, UMass Amherst is our September 2010 Speech Code of the Month. We hope that UMass will spare itself the continued embarrassment of fighting against the Bill of Rights by immediately eliminating this shameful policy.
If you believe that your college's or university's policy 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 September 2, 2010, at 11:57 AM
Celebrate Constitution Day with FIRE!
September 2, 2010
All FIRE supporters can promote individual rights this month by celebrating the document that codified our basic rights as Americans: the U.S. Constitution. The U.S. Congress established September 17 as "Constitution Day and Citizenship Day" in 2004 to "commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens." Add this special day to your calendar by joining FIRE's Constitution Day event on Facebook.
Over the past few years, college students have embraced Constitution Day as an opportunity to remind fellow students about their rights on campus. Liberty-minded student groups host creative and attention-grabbing Constitution Day events to kick off the new school year. You can catch 2010 FIRE intern Nico Perrino with his group's "guerrilla gorilla" here, or read about Florida Atlantic University's "food for freedom" exchange here.
No gorilla suit? No problem. Here are a few other ways you can celebrate:
- Set up an open microphone or soapbox in a public place for people to use throughout the day. Have group members use it to read the Constitution and passages of "banned books" aloud. Sing "Happy Birthday" to the Constitution.
- Stage a debate about an issue that you think doesn't get enough attention on campus. Or stage one between the Federalists and the Anti-Federalists, using arguments from period writings like the Federalist Papers. (This is a great excuse for period costume!)
- Build a temporary "free speech wall" out of cardboard or plywood covered in paper and provide markers for students to exercise their right to anonymous speech on campus.
- Host a trivia event to find out what students really know about the Constitution and the First Amendment. Extra points for naming all five rights in the First Amendment!
- Hand out pocket Constitutions, or candy with articles, sections, or amendments to the Constitution attached. Everybody likes free stuff, especially free food.
Permalink | E-mail comments | Posted by Jaclyn Hall on September 2, 2010, at 10:40 AM
Reminder to Attorneys in New York and Pennsylvania: Sign Up Now for FIRE's CLE Course!
September 1, 2010
With the calendar turning to September, I want to let attorneys in New York and Pennsylvania know that they still have time to sign up for FIRE's first-ever Continuing Legal Education (CLE) course. FIRE's CLE, "Free Speech 101: Protecting Free Expression and the First Amendment at our Nation's Colleges and Universities," will take place on Tuesday, September 14, in New York City, and you can register online here or by clicking the button below.
Here are the key details for the time and place of our CLE:
September 14, 2010
2:00 - 4:00 p.m.
22 East 30th Street
New York, NY 10016
FIRE's CLE, which will be taught by Will Creeley, our director of legal and public advocacy, along with me, will provide an in-depth examination of the state of the law on freedom of speech on today's college campuses. The course will discuss the decades of precedent from the Supreme Court and lower courts upholding First Amendment protections on college campuses, emphasizing the primacy of free speech and academic freedom in higher education, and designating the university campus as peculiarly the "marketplace of ideas." The course will then examine the fact that in spite of this judicial clarity, colleges and universities continue to maintain speech codes, university regulations prohibiting expression that would be constitutionally protected off-campus, denying students and faculty the right to free speech.
The course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for two credit hours in "Areas of Professional Practice." The course has also been approved by the Pennsylvania Continuing Legal Education Board for 1.5 hours of substantive law, practice, and procedure CLE credit. It is appropriate for both newly admitted and experienced attorneys.
Registration for FIRE's CLE costs $40, and financial aid is available. Members of FIRE's Legal Network may attend free of charge. Full details and online registration are available here.
With just under two weeks left to register, I encourage attorneys interested in our course to register today! The course promises to be a very interesting one, as FIRE shares the unique knowledge of campus speech rights that we have gleaned over our decade of existence. For more information, please visit our main CLE page or contact Will at will@thefire.org.
Permalink | E-mail comments | Posted by Azhar Majeed on September 1, 2010, at 3:51 PM
Red Alert at Michigan State: Time to Set Things Right
September 1, 2010
FIRE's full-page ad in U.S. News & World Report's college rankings issue exposes the colleges and universities that are the "worst of the worst" when it comes to individual rights. At these schools it is downright dangerous for students to express themselves without fear of censorship or punishment. By placing these schools on our Red Alert list, FIRE warns prospective students and faculty members to think twice before attending.
Bucknell University and Michigan State University are the two newest schools to receive this dishonorable distinction, having joined longtime members Brandeis University, Colorado College, Johns Hopkins University, and Tufts University. For the next few days here on The Torch, we'll be examining each of our Red Alert schools in turn and explaining what they've done wrong and how they can fix it. Today, we start with Michigan State.
Here's why people should think twice about applying to Michigan State University (MSU) and what MSU should do about it.
In late 2008, MSU revealed plans to shorten the school's academic calendar and freshman orientation schedule. There was very little time to give input, but MSU's University Committee on Student Affairs (UCSA) quickly met and constructed a response letter. UCSA included faculty, students, and administrators. Kara Spencer was both a UCSA member and Association Director of the student government. She told UCSA that she would send individual faculty her own version of its letter. Nobody objected. She carefully selected 391 faculty members (about 8 percent of the faculty of Michigan State) who she thought would be most interested and able to add their voices, and the e-mails went out.
Within two days, MSU Network Administrator Randall J. Hall summoned Spencer to a mandatory "investigation" meeting. Hall alleged that Spencer 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, Spencer was found responsible for "spamming." A formal warning was placed in Spencer's file, hurting her chances of obtaining employment or attending graduate school.
In response, 13 civil liberties organizations, led by FIRE and the Electronic Frontier Foundation (EFF), wrote an open letter to MSU President Lou Anna K. 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."
Then, something even worse happened: MSU changed its spam policy to make it much more restrictive than before. As a result, an e-mail alert like Spencer's would be even more likely to be punished. Now, students and faculty members cannot e-mail more than 10 recipients unannounced to ask them to weigh in on an urgent campus issue.
Perhaps worst of all, the new policy bans expressing personal opinions in a way that has no hope but to be enforced selectively:
The University's e-mail services are not intended as a forum for the expression of personal opinions. Other means exist in the University community for the expression and dissemination of personal opinions on matters of interest within the University community. Rather, the University's e-mail services are provided to support the University's instructional, public service, research, and administrative objectives.
What? You're confused? You must be confusing MSU with a free marketplace of ideas. No, nobody around here is expecting to get an e-mail asking them to think about something important.
MSU has completely redefined what virtually every college student is allowed to do with his or her e-mail account. If I were a leader of a campus organization in any way involved in activism or campus issues, I would find this new policy outrageous. Next thing you know, MSU will say that you can't use MSU's Internet connections to contact more than 10 people unannounced on Facebook. After all, the university's property is not intended as a forum for the expression of personal opinions; other means exist for that.
Last week, FIRE placed a copy of our full-page U.S. News ad in The State News, MSU's student newspaper. We also will be contacting a lot of student organizations to let them know two things:
1. MSU has suffered two years' worth of national embarrassment over its disrespect for free speech on campus; and
2. MSU student organizations can be part of the solution, if they're willing to stand up for their own rights.
It is easy for MSU to get off of FIRE's Red Alert list. All it needs to do is redress the infirmities in the new spam policy. Few, if any, students at public universities in the United States expect such a level of disrespect for free speech on their university-provided e-mail accounts, and it is long past time for MSU to set things right.
Permalink | E-mail comments | Posted by Adam Kissel on September 1, 2010, at 2:16 PM
For Third Straight Year, FIRE Exposes Worst Abusers of Student and Faculty Rights in 'U.S. News' Red Alert Ad
August 31, 2010
Once again, FIRE is calling out the worst abusers of student and faculty rights in a very public way.
As today's press release announces, FIRE has placed a full-page advertisement in the 2011 edition of U.S. News & World Report's Best Colleges issue, publicly chastising the institutions on our Red Alert list—Bucknell University, Brandeis University, Colorado College, Johns Hopkins University, Michigan State University, and Tufts University—for egregiously violating the rights of their students and faculty. This is the third consecutive year FIRE has publicly criticized Red Alert schools in U.S. News & World Report's college rankings issue, which hits newsstands today. We're also increasing the ad's impact by running large advertisements in the first issue of student newspapers at each of these institutions, warning new students about the repressive culture on campus.
All of the schools on FIRE’s Red Alert list have refused to remedy their own egregious offenses against fundamental rights. Over the next few days here on The Torch, we'll be examining just what each of these schools did to wind up on our Red Alert list--and what they can do to remove themselves. But here's a short round-up from today's press release:
Bucknell University, the newest addition to the list, repeatedly used flimsy or patently false excuses to censor a conservative group’s satire of President Obama’s stimulus plan and the group’s “affirmative action bake sale” protest. Brandeis University found a professor of nearly 50 years guilty of racial harassment for using the word “wetbacks” in his Latin American Politics class—in the context of criticizing the term. Colorado College found two students guilty of “violence” simply for posting a flyer that satirized another flyer circulated by a student group.
Johns Hopkins University suspended a student for what it deemed an “offensive” Halloween party invitation posted on Facebook.com, and then passed a repressive “civility” code over the protests of student leaders. Michigan State University found a student government leader guilty of “spamming” after she e-mailed 8 percent of the faculty to encourage them to express their views on a proposed shortening of the school calendar. And Tufts University found an entire student newspaper guilty of “harassment” for publishing two pieces satirizing affirmative action and Islamic Awareness Week. The latter of these two pieces included only factually verifiable information about Islam, as well as quotes from the Koran.
Stay tuned for more on each of these shocking cases. In the meantime, I urge you to check out the story of the student featured in our ad, Andre Massena. Torch readers may remember Andre was nearly expelled from SUNY Binghamton (now known as Binghamton University) for publicly criticizing a faculty member. Andre believed the faculty member, who also held a government job as Executive Director of the Binghamton Housing Authority, was responsible for social injustice for evicting people from public housing. With FIRE's help, Andre was able to graduate. Here's a short video of Andre telling his story:
Stay tuned for more on FIRE's Red Alert list!
Permalink | E-mail comments | Posted by William Creeley on August 31, 2010, at 5:30 PM
Greg in 'Huffington Post' on FIRE's 'U.S. News' Ad
August 31, 2010
Corresponding with today’s release of our annual U.S. News & World Report ad about the "worst of the worst" colleges for free speech, FIRE President Greg Lukianoff has a new article up on The Huffington Post. In his article, Greg discusses the outrageous case of Binghamton University social work master's student Andre Massena, who is featured in FIRE’s ad:
In this age of campus obsession with sensitivity above all else, some of you might think that criticizing a university professor could rightfully land a student in hot water. But colleges and universities must not insulate themselves from serious controversy, hurt feelings, or all the normal abrasions of the serious business of education. Here, a student was exercising his First Amendment right to criticize the university's decision to hire a professor he believed had played a role in kicking poor people out of their homes. For that he was suspended, assigned to confess his sin against the university and to repudiate his deepest belief in justice, and faced with what seemed like an inevitable expulsion. All of this was not only morally wrong but shockingly unconstitutional behavior by the Department of Social Work.
Greg also encourages his readers to learn more about all of the schools on FIRE’s Red Alert list and to read about what landed each of them in hot water with FIRE. As Greg states:
Prospective students, their parents, and alumni aren't the only ones who should be watching to ensure that our nation's universities respect free speech and academic freedom.
Indeed, this is an issue about which each and every one of us should be concerned. Be sure to check out Greg’s full post here.
Permalink | E-mail comments | Posted by Jennifer Feden on August 31, 2010, at 4:44 PM
After Retraction of ‘Media Policy,’ Harvard Med School Updates Faculty Conflict Rules
August 31, 2010
Starting in January 2011, Harvard Medical School (HMS) will change how it regulates the nature and extent of medical industry ties among the school's 11,017 faculty members, HMS officials announced in late July. The updated policies, the product of a sustained student-led movement, include a ban on faculty accepting personal gifts from medical companies and a requirement to disclose commercial payments of more than $5,000.
What's notable about these changes, at least from FIRE's vantage point, are not so much the details of the updated HMS conflict-of-interest policies. Rather, the interplay between student activists and HMS administrators—in particular, the seemingly hostile response to student interaction with off-campus media—deserves a second look.
Pressure for reform began in earnest in 2005, when a group of first-year HMS students found that their professor held a board position on a company whose products (and their benefits) were discussed in class. That the professor's stake in the product was not disclosed—and that this did not violate formal HMS policies—led these students, along with like-minded faculty, to organize and advocate for stricter conflict-of-interest rules, The New York Times reported.
As the movement progressed and HMS established a 19-member committee to review the existing conflict-of-interest policies, national media took notice. In March 2009, the Times spotlighted not only the efforts to augment the policies, but also a pharmaceutical company employee photographing HMS student protesters and the resulting scrutiny from federal lawmakers.
Shortly after the Times interviewed students, administrators enacted a rule that seemed to impose prior approval on all student contact with off-campus media. The policy read:
All interactions between students and the media should be coordinated with the Office of the Dean of Students and the Office of Public Affairs. This applies to situations in which students are contacted by the media as well as instances in which students may be seeking publicity about a student-related project or program.
As Adam noted in his previous coverage on The Torch, Dean for Medical Education Jules L. Dienstag, in an August 25, 2009, e-mail to HMS students and faculty, wrote that "we are all responsible to uphold" such policies. Some students saw this as an attempt to silence their criticism.
There's nothing quite like an attempted muzzling—or at least the appearance thereof—to gain unwanted media attention, HMS administrators soon found out. When the Times inquired about the HMS media policy in September 2009, administrators quickly retreated, admitting that the wording was "problematic" and pledging to remove the policy from the student handbook. (The electronic version of the HMS student handbook is available only to enrolled students, according to the HMS Registrar's Office. As a result, FIRE, as well as prospective HMS students, are unable to confirm that this policy has been removed.)
To FIRE Board of Directors Chairman Harvey Silverglate, the ill-advised HMS media policy is yet another example of Harvard's "urge to ‘control the message' and eliminate potential threats to the bottom line," as he wrote in the 2010 edition of the Boston Phoenix's annual Campus Muzzle Awards. Harvey included this media policy as one in a series of university-wide decisions in the past year that furthered Harvard's "corporatized" image.
FIRE recognizes that determining where to draw the line with industry involvement in academia is difficult, requiring a careful balance between preserving academic integrity on the one hand and encouraging valuable industry collaboration on the other. Nonetheless, when administrators attempt to limit student expression, it only distracts everyone from the difficult task at hand.
Permalink | E-mail comments | Posted by Kyle Smeallie on August 31, 2010, at 10:22 AM
FIRE Answers the Most Frequently Asked Questions about 'Christian Legal Society v. Martinez'
August 30, 2010
As colleges and universities across the country begin another academic year, many students, faculty, and administrators are wondering how the United States Supreme Court's June 28 decision (.pdf) in Christian Legal Society v. Martinez will affect their experience on campus. Members of the general public also might be wondering what exactly the Supreme Court decided in Martinez.To help alleviate lingering confusion about what the Court's opinion in Martinez means, FIRE attorneys have prepared answers to the most frequently asked questions about the ruling.
We've aimed to provide thorough explanations to the hard questions about the case, paying special attention to concerns that students, student groups, and administrators might have. We've also tried to dispel the uncertainty about what exactly the Court's ruling does and does not require, and what student groups in particular should look out for when they return to campus. Here's a quick look at some of the questions my colleagues and I have answered:
"What does FIRE think of the Court's decision?"
"This is a case about student groups. What does CLS v. Martinez have to do with free speech?"
"How does FIRE think CLS v. Martinez will impact speech on campus?"
"Does FIRE support public funding or subsidies for discrimination on campus?"
"I'm a student leader of a student group at a public college. How will CLS v. Martinez affect my organization?"
"I'm an administrator with oversight of student organizations at a public college. How does CLS v. Martinez change the way my institution may regulate student organizations?"
The answers to those queries and more can be found here, at FIRE's Christian Legal Society v. Martinez FAQ. I urge all those interested in the issues raised by Martinez to take a look and read our answers.
Permalink | E-mail comments | Posted by William Creeley on August 30, 2010, at 4:38 PM
Judge Sets Aside Virginia Attorney General's University of Virginia Document Demands
August 30, 2010
Citing a failure to show "reason to believe" that fraud had occurred at the University of Virginia (UVa), Judge Paul M. Peatross, Jr., has set aside the Civil Investigative Demands (CIDs) issued to UVa by Virginia Attorney General Kenneth T. Cuccinelli, II, who has sought a huge swath of UVa documents in order to investigate possible fraud under the Virginia Fraud Against Taxpayers Act (FATA). The sweeping CIDs would have required UVa to find and hand over more than a decade's worth of documents involving dozens of researchers related to former UVa professor Michael Mann and his five UVa-related research grants.
Cuccinelli's initial demands for documents provided no evidence suggesting fraud on the part of Mann, and an extremely troubling precedent would have been set if his demands had gone unchallenged in that form. FIRE thus pushed Cuccinelli to reveal whether he had any basis for his comprehensive demands. Cuccinelli then provided a basis for his demands, and, as we noted in June, it was then up to the court to decide. The court has now decided that Cuccinelli has not shown enough reason to pursue the CIDs.
In his ruling (.pdf), Judge Peatross ruled that the "reason to believe" standard is not subjective—which would give the Attorney General "unbridled discretion to say he believes" fraud has occurred, without affording judicial review—but objective. That is, Peatross ruled that in such cases, the "nature of the conduct" must be spelled out in order to demonstrate an objective "reason to believe." Although Deputy Attorney General Wesley G. Russell, Jr., referred the court to fifteen pages of explanation, Peatross did not find this material to provide sufficient objective reason:
The Court has read with care those pages and understands the controversy regarding Dr. Mann's work on the issue of global warming. However, it is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.
The court also agreed with UVa's argument that "If the Attorney General and the University agree that the first four listed grants are federal grants, ... the Attorney General should not be able to investigate these grants." Furthermore, the court agreed that the fifth grant, a state grant dating back to 2001, could only be subject to investigation under FATA "if any funds were paid on the grant after January 1, 2003," the date FATA went into effect. (Documents from an earlier time could be requested "as reasonable discovery to evaluate any conduct after January 1, 2003.")
As for the scope of any possible future CID on the 2001 state grant, Judge Peatross stated that the information available for review would be limited significantly:
[T]his request would be limited to correspondence ... to or from Dr. Mann that relate to any information, materials or documents contained in the application for the 2001 U.Va internal grant and any information, materials, or documents provided by or to Dr. Mann that relate[] to approval or payment of any funds to him at any time under the grant until it ended.
This result looks about right. The judge appears to have set a reasonably high bar for demonstrating an objective reason to believe that a public university in Virginia holds documents relating to an investigation of a professor for fraud under FATA. This result should reassure faculty members across the state that their academic freedom is reasonably well protected, so long as they do not give the Attorney General any objective reason to pursue a fraud investigation. Conducting highly controversial research is not such a reason. Of course, in Mann's case, the Attorney General now has the opportunity to make a better case (or to appeal this ruling), so again we must wait to see whether any such reasons are forthcoming.
Furthermore, in such cases, the documents that must be produced should be limited to the topics of "the application for the ... grant" and "approval or payment of any funds ... under the grant." That means a huge swath of materials would not be subject to CIDs under FATA. This ruling should go a long way toward reducing the CIDs' chilling effect on faculty members in Virginia.
Permalink | E-mail comments | Posted by Adam Kissel on August 30, 2010, at 4:09 PM
Maximize Your Donation to FIRE with a Matching Gift
August 30, 2010
Want to double (or even triple) the impact of your donation to FIRE, without taking any more money out of your own pocket? It's easy! Many companies offer matching gift programs through which they will match charitable donations made by their employees. To find out if your company is one of these, contact your Human Resources Department.
If your employer does have a matching gift program, simply request a matching gift form, complete and sign it, and mail it to FIRE along with your donation. We'll take care of the rest. If you've already donated to FIRE but still want to have your gift matched, that's not a problem. You can mail us the completed matching gift form, and we'll verify that we received your donation. Some employers even offer matching gift forms online—making it even easier for you to maximize your donation.
I know that donors often wish they could afford to contribute more to their favorite causes, and I hope that for some of you, your employer's matching gift program will give you the opportunity to do just that. Please take a few minutes today to find out if your employer is one of the many who offer matching gift programs.
Should you have any questions about matching gifts or about making a donation to FIRE, please do not hesitate to contact us at support@thefire.org. As always, all of us at FIRE are deeply grateful for the generous support of our many friends and allies.
Permalink | E-mail comments | Posted by Jennifer Feden on August 30, 2010, at 12:53 PM
Rights in the News: Third Circuit Gets it on Free Speech, Mississippi Doesn't
August 27, 2010
A pity that the Third Circuit's jurisdiction doesn't extend to the Magnolia State, given the lessons that Mississippi's public colleges—starting with Hinds Community College—could stand to learn about the First Amendment. As Jaclyn noted earlier in the week, interest in free speech at Mississippi colleges has branched out from Isaac Rosenbloom's case at HCC to the state's other universities, and the picture is equally dim there. The Bolivar Commercial of Cleveland, Mississippi, was the latest to highlight this issue, taking its cue from Elizabeth Crisp's recent Clarion-Ledger article on the same subject. (That article, as Jaclyn also noted, has been making the rounds nationally).
Contrast that unflattering picture with the wonderful news out of the Third Circuit, which invalidated yet another university speech code in McCauley v. University of the Virgin Islands, two years after its landmark ruling in DeJohn v. Temple University. Will Creeley, FIRE's Director of Legal and Public Advocacy, has written an authoritative account on the ruling and its implications for free speech at the legal blog The Legal Satyricon, which I encourage Torch readers to check out.
Today, the Pope Center's Jay Schalin does Davidson College the honor of highlighting its amusingly restrictive speech code in an article about Davidson College's outgoing president, Thomas W. Ross, who will be the University of North Carolina system's next president:
One situation at Davidson that might reveal some of Ross's tendencies as a leader is the school's speech code. Before Ross arrived, the free speech watchdog group Foundation for Individual Rights in Education (FIRE) declared Davidson's code to have a "chilling effect" on students right to express themselves freely. The code prohibits "comments or inquiries about dating," "jokes," "teasing, dismissive comments," and "making [offensive] facial expressions."
According to FIRE staff members, FIRE contacted Ross's predecessor about the speech code, recommending that it be made less restrictive. While FIRE never contacted Ross directly, the organization has frequently publicized the policy as one of the most restrictive in the country. Yet despite FIRE's pressure, the speech code remains intact after Ross's three years in charge.
Davidson's policy also prohibits the use of "patronizing remarks" such as "referring to an adult as ‘girl,' ‘boy,' ‘hunk,' ‘doll,' ‘honey,'" or "sweetie." Do people still use all these terms in North Carolina, and are they really anything like true sexual harassment?
Finally, as if we needed another reminder that summer is ending, the University of Idaho Argonaut catches up with UI student Alex Rowson, whom FIRE successfully defended in a free speech case earlier this year. In spite of his recent difficulties with the UI administration, Rowson looks forward to starting the school year on a high note, as do we.
Permalink | E-mail comments | Posted by Peter Bonilla on August 27, 2010, at 4:58 PM
University of Virginia Revises Troublesome 'Bias Reporting' Policy
August 27, 2010
Following discussions with FIRE, University of Virginia Dean of Students Allen Groves has revised the university's "bias reporting" policy, which previously infringed on students' right to free speech. FIRE is grateful for Dean Groves' commitment to Virginia students' free speech rights and is happy to report on this exciting development.
The old policy encouraged students to report all "bias complaints," defined as
[A] report of a threat or act of bigotry, harassment or intimidation - verbal, written or physical - which is personally directed against or targets a University of Virginia student because of that student's race, age, color, disability, national or ethnic origin, political affiliation, religion, sex (including pregnancy), sexual orientation, or veteran status. (Emphasis added.)
While harassment and intimidation are not protected forms of speech, the fact that speech is bigoted does nothing, in and of itself, to deprive that speech of First Amendment protection. There are many positions on political and social issues that may strike some people as bigoted, and it is essential that these positions are able to be aired and debated in the marketplace of ideas.
Although Virginia's "bias reporting" policy does not form an independent basis for the punishment of speech, the risk of an official investigation is itself sufficient to have a powerful and impermissible chilling effect on student speech, so FIRE alerted the university that the policy as it stood was a threat to free speech on campus.
Fortunately, Virginia has now removed the word "bigotry" from its definition of a bias complaint, defining it as "a report of a threat or act of harassment or intimidation - verbal, written or physical - which is personally directed against or targets a University of Virginia student ...." Additionally, in a letter introducing the policy, Dean Groves makes clear that constitutionally protected expression will never form the basis for an official university investigation. Dean Groves' introduction states that
Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation. Indeed, as our founder Thomas Jefferson once wrote, "For here we are not afraid ... to tolerate error so long as reason is free to combat it." However, we should do all that we can to foster a good dialogue on what is appropriate in our community of peers. [Emphasis added.]
So, it looks now as if Virginia's bias reporting mechanism is merely a way for the university to keep track of troubling incidents on campus so that it can, when necessary, issue the appropriate institutional response. This is in line with one of FIRE's guiding principles, which is that the best response to offensive speech is simply more speech. Although the University of Virginia still has a number of other policies that need reform before it can join its fellow state school William & Mary as a "green light" institution, this is a very positive development, and we are excited to report on it. Kudos to Dean Groves for having the courage and principle to stand up for free expression and the First Amendment.
Permalink | E-mail comments | Posted by Samantha Harris on August 27, 2010, at 4:16 PM
Virginia ACLU Petitions Supreme Court to Overturn Restrictions on Alcohol Advertising
August 27, 2010
The American Civil Liberties Union of Virginia has filed a petition asking the United States Supreme Court to review a recent decision by the Court of Appeals for the Fourth Circuit allowing for the restriction of alcohol-related advertisements in collegiate newspapers. The ACLU of Virginia, which filed the petition (.pdf) on Monday, is challenging the Fourth Circuit's decision (.pdf) in Educational Media Company at Virginia Tech v. Swecker on behalf of The Collegiate Times and The Cavalier Daily, student newspapers at Virginia Tech and the University of Virginia, respectively.
The Times and the Daily have challenged this regulation—instituted by Virginia's Alcoholic Beverage Control Board—successfully before. In 2008, a federal district court ruled that the ban was a violation of the papers' rights. This past April, however, the Fourth Circuit overturned the lower court's decision (in a three-judge panel, with one dissenter), citing a supposed link between reductions in alcohol-related advertising aimed in part at under-21 students and reduced underage binge drinking on college campuses. As the ACLU's press release puts it:
[T]he Fourth Circuit concluded that there was a "common sense" link between alcohol advertising bans in college papers and a decrease in demand for alcohol by college students, even if there was no evidence to support such an assumption.
This "common sense" conclusion was determined a worthy enough reason to abridge the editorial freedoms of the Times, Daily, and other college newspapers. Student Press Law Center (SPLC) Executive Director Frank LoMonte writes at SPLC's blog about the problematic nature of such a minimal evidence requirement:
[T]he Circuit's two-judge majority did not require the state to prove that restricting ads only in student publications actually produces any significant improvement in underage drinking and binge drinking, which is the rationale the state gave for singling out student media. There was no evidence that drinking on campus is any less problematic in Virginia than in comparable states without advertising restrictions, and the state could produce no studies or expert testimony documenting any cause-and-effect link.
Sounds pretty convincing, huh?
Currently, alcohol may be advertised in college newspapers only in the context of ads for dining establishments, though even that is restricted: restaurants are free to mention that they serve beer, but not to mention that you can get them for, say, two dollars a pint during happy hour. Worryingly, the Fourth Circuit held the damage to First Amendment interests caused by this restriction to be minimal, citing the relatively small circulations of most college newspapers and the sizable portion of readers who cannot legally purchase or consume alcohol. But First Amendment freedoms do not depend on circulation size, nor may freedom of the press be infringed upon because of the composition of a paper's audience—which is debatable anyhow. Again, Frank LoMonte pokes holes in this argument:
[T]he Circuit panel ignored the existence of alternative anti-alcohol-abuse measures - such as cautionary safe-drinking ads - that are proven to be more effective than an advertising ban, with no adverse First Amendment hangover. The majority judges concluded that the ban did little harm to First Amendment interests because it was "targeted" to publications read by those under 21, but (as the ACLU's petition argues) the evidence in fact showed otherwise. At least half of the readers of the Collegiate Times and Cavalier Daily are of legal drinking age, meaning that Virginia's restrictions are depriving thousands of readers of accurate information about a product that is legal for them to purchase.
What's more, the Fourth Circuit decision jeopardizes the finances of the ad revenue-dependent papers to the tune of thousands of dollars per year ($30,000 per year for the Times and Daily, according to the Washington Post), a reminder that the threats posed to the papers are not merely rhetorical.
The ACLU is challenging the Fourth Circuit's "common sense" rationale for its decision, and also pointing to the success of a similar suit brought in Pennsylvania—where the ACLU, on behalf of the University of Pittsburgh's Pitt News—successfully challenged a similar ban. In that case, the Third Circuit Court of Appeals' decision striking down the ban was authored by Samuel Alito, now of course an Associate Justice on the Supreme Court (and author of a stinging dissent in defense of free speech in Christian Legal Society v. Martinez).
The infantilization of college students resulting from this state law deserves to be challenged, and I hope the Supreme Court hears it. It's distressing to see this kind of discrimination against college newspapers sanctioned by courts simply because a portion of their readership isn't of legal drinking age. As Rebecca Glenberg, Legal Director of the ACLU of Virginia, pointed out, "College students are bombarded with alcohol ads everyday ... [t]here is no reason to believe that banning the small fraction of these ads that appear in college newspapers has any impact on student behavior."
In other words, an allegedly "common sense" link between someone's speech and someone else's behavior is not a good enough reason to roll back the First Amendment rights of college newspapers. I hope the Supreme Court will agree.
Permalink | E-mail comments | Posted by Peter Bonilla on August 27, 2010, at 10:52 AM
FIRE's California Happy Hour with Comedian Larry Miller, Advice Goddess Amy Alkon, and the Reason Foundation
August 26, 2010
On Wednesday, September 15, at 7 PM, FIRE will be hosting a happy hour in Culver City, Calif.—just outside of Los Angeles. The party will be co-hosted by the Reason Foundation and Amy Alkon, the Advice Goddess.
The evening will also feature a special guest: actor and comedian Larry Miller. Larry Miller has appeared in more than 100 movies and television shows including Seinfeld, Pretty Woman, Best in Show, The Princess Diaries, and Desperate Housewives. We are thrilled that he will be joining us and treating our guests to some of his brilliant stand-up.
Fun will be had by all, so don't miss out! If you're in the LA area, join us and your fellow liberty-loving friends at Rush Street in Culver City for some laughs and thoughtful conversation. You can find event details here. If you plan to attend, please e-mail alisha@thefire.org. We hope to see you there!
Permalink | E-mail comments | Posted by Alisha Glennon on August 26, 2010, at 5:22 PM
Third Annual 'Freedom In Academia' Scholarship Contest Now Accepting Submissions
August 26, 2010
FIRE is pleased to announce its Third Annual "Freedom in Academia" Essay Contest.
FIRE's mission states in part that we exist "to educate the public and communities of concerned Americans about the threats to rights on our campuses." For this purpose, high school students from across the country who will be graduating in 2011 and attending college the following fall are invited to write an in-depth essay explaining why free speech and First Amendment rights are crucial to higher education and how abuses of these rights are contrary to the purpose of a university education. Last year's contest was a huge success, garnering 2,700 essay submissions from students across the country. Read the winning essays here.
Students are asked to watch two short FIRE documentaries: Political Correctness vs. Freedom of Thought - The Keith John Sampson Story and Think What We Think...Or Else: Thought Control on the American Campus. Students will see how university administrators at Indiana University-Purdue University Indianapolis and the University of Delaware stifled the constitutional rights of their students to freedom of expression and freedom of conscience. Students should read FIRE's mission, watch FIRE's other videos, and read posts on The Torch to get a sense of FIRE's goals and activities.
Students then are asked to write 700 to 1,200 words explaining how the universities in the videos betrayed their purpose as a "marketplace of ideas" and violated the First Amendment freedoms of their students.
Deadline for entry is November 1, 2010. Winners will be announced by December 17, 2010.
This year, FIRE will award one first-place winner a $5,000 scholarship, one second-place winner a $2,500 scholarship, and five runners-up $1,000 scholarships.
Essays should be submitted on the contest page, via e-mail to scholarships@thefire.org, or via postal mail to:
FIRE
Attn: Scholarship Essay Contest
601 Walnut Street, Suite 510
Philadelphia, PA 19106
To view the complete rules and regulations for the contest, please click here.
Permalink | E-mail comments | Posted by Jaclyn Hall on August 26, 2010, at 3:56 PM
More Public Scrutiny of Mississippi Speech Codes in the Wake of Hinds Case
August 25, 2010
Nearly a month after FIRE's victory at Hinds Community College, the case is still reverberating in news coverage across the country.
Locally, The Bolivar Commercial of Cleveland, Mississippi, published a biting editorial condemning Hinds and other Mississippi colleges for violating students' First Amendment rights. The editorial was also reprinted in the Hattiesburg American (Hattiesburg, Mississippi). It opens:
Schools need to learn that all America is a free-speech zone.
Let's see if we got this straight. Mississippi's universities and colleges teach the principles of American government, don't they?
Well then, why don't they realize that freedom of speech is a basic right that belongs to everybody—even the lowliest freshmen on their campuses.
See, it says right here in the very First Amendment to the U.S. Constitution that government shall make no law abridging the freedom of speech. And as the late Justice Hugo Black once explained to those who are rather dense, "No means no."
So then what is it our erudite institutions of higher learning don't understand about the word "no"—the "n" or the "o"?
In addition to the Hinds case, The Bolivar Commercial highlights absurd policies at other schools, including Jackson State University and the University of Mississippi (Ole Miss):
Unfortunately, the college isn't the only public institution in Mississippi that didn't get the word about the 218-year-old First Amendment.
Old Miss bristles at students using speech like "I hate Southern Miss." Jackson State students could even be punished for unsolicited flirting, and most of the campuses' students could find themselves in hot water for speaking freely about public issues, like abortion, outside so-called "free-speech zones."
Apparently those schools are unaware of the fact all of America is "a free-speech" zone, and the courts have backed that important concept.
This criticism echoes Elizabeth Crisp's attention to Mississippi's speech codes in her recent Clarion-Ledger article—featuring analysis by FIRE's Adam Kissel—which Will blogged on the Torch last week. Her laundry list of the absurd, the vague, and the overbroad includes even more of the state's public colleges:
Jackson State students could be punished for unsolicited flirting.
...
The University of Southern Mississippi's student handbook restricts "expression of profanity, which exceeds the normal standards of decency prevailing in the general Hattiesburg community at large," which could set up a situation like the one at Hinds.
Alcorn State bans "excessive physical annoyance" by anyone on campus or at any Alcorn-related event—meaning rowdy football fans could be accused of harassment under some interpretations.
The University of Mississippi's Internet usage policy bans any any "hateful" communication.
You can check out FIRE's Spotlight ratings for Mississippi schools here.
Also, the Associated Press wire picked up Crisp's story, which has since been published by news outlets around the country including the St. Louis Post-Dispatch, the Westport News (Connecticut), the Laurel Leader Call (Mississippi), the Montgomery Advertiser (Alabama), and the Sun-Herald of Biloxi, Mississippi, among others.
The national scrutiny of Mississippi's speech codes will hopefully inspire (or shame) Hinds, Ole Miss, and the rest to revise their unconstitutional policies. Their possible confusion over "n" or "o" aside, bad press is a language that every university administrator understands.
Permalink | E-mail comments | Posted by Jaclyn Hall on August 25, 2010, at 11:24 AM
‘Christian Legal Society v. Martinez’ Update: On Remand, Ninth Circuit Considers Whether to Address CLS' Claim of Pretext
August 25, 2010
As we detailed last month, the Supreme Court issued a disappointing but narrow ruling in Christian Legal Society v. Martinez. The Court held that public universities may require student organizations to accept all students as voting members and allow all members to run for leadership positions, regardless of whether these students share the group's core beliefs. The majority opinion's reasoning hinged on the fact that the so-called "all-comers" policy was viewpoint neutral-in other words, that it applied to all student organizations regardless of their views. This principle of viewpoint neutrality was crucial to the Court's determination that the all-comers policy implemented by the University of California Hastings College of the Law (Hastings) did not violate the Christian Legal Society's freedom of expressive association.
In the lower courts and before the Supreme Court, however, the Christian Legal Society (CLS) argued that Hastings was enforcing this policy selectively to interfere with CLS' ability to express its viewpoint. CLS believed that the all-comers policy was a mere pretext for forcing it to accept those who did not adhere to its views on Christianity and sexual relations, and argued that other student groups, such as the Hastings Democratic Caucus, continued to exclude students who did not support the particular group's mission. The Supreme Court did not consider these arguments, but instead stated:
In its reply brief, CLS contends that "[t]he peculiarity, incoherence, and suspect history of the all-comers policy all point to pretext." Reply Brief 23. Neither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider CLS's pretext argument if, and to the extent, it is preserved.
Over the past few weeks, CLS, Hastings, and the Hastings student group Outlaw have filed motions before the Ninth Circuit on the issue of whether CLS' argument that Hastings selectively enforced its all-comers policy to discriminate against certain viewpoints is properly preserved for consideration by the lower courts.
CLS' motion and reply motion cite Justice Alito's dissent in Martinez, which noted that CLS made a strong showing that "Hastings' sudden adoption and selective application of its accept-all-comers policy was a pretext for the law school's unlawful denial of CLS's registration application . . . ." Further, CLS' motions contend that it has consistently raised this issue before the trial court, the Ninth Circuit, and the Supreme Court.
In response, Hastings and Outlaw argue that the trial court's and Ninth Circuit's prior rulings and findings of fact should not be disturbed and that CLS did not take the necessary steps to preserve this issue.
The Ninth Circuit must now decide whether it should address this factual dispute over whether Hastings selectively enforced its all-comers policy against CLS. However, even if the Ninth Circuit refuses to consider this issue, CLS can always bring a new case if, in the future, Hastings selectively enforces-or fails to enforce-its all-comers policy against any student group. All-comers policies are constitutional under Martinez only if they are enforced in a viewpoint-neutral way, and student groups should remain alert to safeguard their rights against selective enforcement.
Stay tuned for more coverage on developments in Martinez as they arise.
Permalink | E-mail comments | Posted by Erica Goldberg on August 25, 2010, at 10:49 AM
Debating the Great Questions at Brandeis: A Look Forward
August 24, 2010
With orientation sessions, meet-and-greets, and motivational speeches, college and university leaders are ushering in the Class of 2014. One such welcome message, delivered this past Sunday by Brandeis University President Jehuda Reinharz to the school's freshman class, caught FIRE's attention. Here's a portion of Reinharz's address, as reported by the Boston Globe:
"The next four years of your life are going to be, in my view, the best of your life. They are going to be a real new beginning for all of you," Reinharz said to students and their families, according to a statement released by the university. "You're going to be able to debate the great questions that have been debated by every generation before you and new ones that my generation and your parents['] generation never even dreamed of."
That is, unless these debates happen to offend someone's sensibilities. It is well-documented fact that, under the current Brandeis administration, the wrong words can be grounds to shut down debate. This was made especially apparent in the case of Brandeis Professor Donald Hindley, whose critique of the racial epithet "wetbacks" in his Latin American politics course led to his being found guilty of harassment in 2008.
As Torch readers know, FIRE has long pushed for Brandeis to right this wrong. That's because, in the course of Hindley's mistreatment, not only was academic freedom grossly violated, but so too was due process. Without ever getting an official statement of the words that caused the controversy, the nearly 50-year teaching veteran was found guilty by the Brandeis administration, and a monitor was placed in his classroom. When he attempted to appeal, Provost Marty Krauss responded that the matter was simply "closed."
Reinharz's steadfast refusal to acknowledge Hindley's innocence only adds to the irony of his professed commitment to "debat[ing] the great questions." And as far as "new ones that my generation and your parents['] generation never dreamed of," how can students and professors push the outer bounds of debate when certain discussions are subject to punishment?Reinharz's tenure is set to end this January. Perhaps his successor, Fred Lawrence, currently dean of the George Washington University Law School, will have a different take. From FIRE's vantage point, there could be no better way for Lawrence to begin his presidency than by revoking the finding that Hindley made "inappropriate, racial, and discriminatory" statements. It would go a long way toward removing Brandeis from our list of Red Alert schools and, more importantly, toward living up to the promises Brandeis makes to incoming students.
Permalink | E-mail comments | Posted by Kyle Smeallie on August 24, 2010, at 2:20 PM
Discussing Victory in 'McCauley' at 'The Legal Satyricon'
August 24, 2010
I had the honor of being invited to author a guest post for The Legal Satyricon, First Amendment attorney Marc Randazza's intelligent and irreverent blog, about last week's big Third Circuit victory in McCauley v. University of the Virgin Islands. My entry, which explains why McCauley is a bigger deal than media coverage indicates, has now been published. I encourage you to check it out—and my thanks to Marc for the opportunity.
Permalink | E-mail comments | Posted by William Creeley on August 24, 2010, at 9:44 AM
FIRE Welcomes New Program Associate Joanna Brenner
August 23, 2010
FIRE is pleased to announce that Joanna Brenner has joined us as our new Program Associate for FIRE's Public Awareness Project.
Joanna is a 2009 graduate of James Madison University, where she majored in Media Arts and Design with a minor in Creative Writing and served as Editor in Chief of the student yearbook The Bluestone. She has also interned and freelanced for The Washington Times and The Baltimore Sun, and last fall was a journalism intern and feature writer at the Student Press Law Center, one of FIRE's frequent partners in defending student rights. It was at SPLC that Joanna's passion for protecting students' First Amendment rights blossomed—and where she was introduced to FIRE's efforts (including at her alma mater).
As our newest Program Associate, Joanna will be responsible for much of the maintenance of our website and our blog, and will be instrumental in the design and editing of our many annual publications. Joanna will be a frequent contributor to The Torch as well. I speak for all of us here when I say that I'm glad Joanna's love of journalism and bottomless belief in the virtues of free speech have found a home at FIRE. We are lucky to have her.
Welcome, Joanna!
Permalink | E-mail comments | Posted by Peter Bonilla on August 23, 2010, at 4:25 PM
California Bans Newspaper Censorship at Charter Schools
August 23, 2010
Though FIRE's mission is dedicated to free speech rights and academic freedom in higher education, we pay attention to free speech developments in high schools as well, since courts sometimes (erroneously, in our opinion) apply rulings governing the speech rights of K-12 children to the adults who populate our nation's college campuses. That's why a law introduced by California Senator Leland Yee and signed into effect by Governor Arnold Schwarzenegger is worth noting. As The Orange County Register reported last week:
Gov. Arnold Schwarzenegger signed into law Tuesday a student free-speech bill that the author says will close a legal loophole that allowed Orange County's largest charter school to censor its student newspaper last year.
State Sen. Leland Yee, D-San Francisco, introduced Senate Bill 438 in January in response to Orange County High School of the Arts' insistence that administrators broke no laws when they halted printing of the student newspaper in fall 2009 over objections to its content.
...
SB 438 passed in the Senate unanimously in January and in a bipartisan 51-19 Assembly vote earlier this month.
The article then describes some pretty stunning acts of censorship on the part of the administration of the Orange County High School of the Arts. While that's not a FIRE issue, what strikes us is the lopsided nature of the vote for the bill in the highly contentious California Senate and Assembly. There aren't many issues that draw unanimous votes in one house of the legislature and a 73 percent majority in the other.
FIRE is glad to see that taking a stand against newspaper censorship is one of those issues, proving once again that the constituency for censorship in America's schools is largely confined to the very people who think that they'll get to do the censoring. Thanks to Senator Yee and Governor Schwarzenegger for their important work on this issue.
Permalink | E-mail comments | Posted by Robert Shibley on August 23, 2010, at 3:43 PM
Rights in the News: Third Circuit Ruling Yet Another Victory for Student Free Speech
August 20, 2010
For the second time in the past two years, the United States Court of Appeals for the Third Circuit has decisively ruled in favor of free speech and against the purveyors of speech codes in our nation's universities. In a ruling that deepens and expands the Third Circuit's prior ruling in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) in several important respects (as Erica noted in depth earlier), the court invalidated key portions of the University of the Virgin Islands' speech codes--a major victory for free speech rights. Read more about this ruling--also briefly discussed at The Volokh Conspiracy, as well as the Chronicle of Higher Education and Inside Higher Ed--here in the coming days as the higher education and legal communities ponder this latest strike against speech codes.
In the continuing debate over the less-welcome ruling in Christian Legal Society v. Martinez, the Heartland Institute has made a welcome contribution, informed largely by a podcast interview with FIRE President Greg Lukianoff. You can read it here.
Finally, as we blogged earlier, The Clarion-Ledger (Jackson, Mississippi) has tackled Isaac Rosenbloom's case at Hinds Community College in Mississippi yet again, in an article that turns its focus to the speech codes in the state of Mississippi as a whole. (Spoiler: they don't do well). It's a welcome bit of sunlight as Mississippi students get ready to hit the books for another semester.
Permalink | E-mail comments | Posted by Peter Bonilla on August 20, 2010, at 5:02 PM
Third Circuit's Ruling in 'McCauley' Spells out Differences Between Collegiate, Grade School Student Speech Rights
August 20, 2010
On Wednesday, the Third Circuit Court of Appeals issued a ruling reaffirming that greater speech protections apply at public universities than at high schools and elementary schools. The appellate court's decision in McCauley v. University of the Virgin Islands, which struck down the university's speech codes, further strengthened the First Amendment protections for university students previously articulated in the Third Circuit's decision in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008).
As we argued in the amicus brief that we submitted in McCauley, courts have too often used the speech standards applicable to the high school and elementary school contexts in the university setting. Applying high school speech cases to universities erodes the great speech protections that university students should enjoy and perverts the role of the university, which was designed to serve as a cauldron for debate and discourse. As our amicus brief contended, "[r]endering the free speech rights of adult students at a public college equivalent to those of schoolchildren provides university administrators legal justification to restrict speech at public institutions far beyond the bounds of the First Amendment, to the detriment of both college students and American society."
Two important Third Circuit decisions have now enshrined this position into appellate court precedent. In DeJohn, the court of appeals invalidated the sexual harassment policy at Temple University, which barred "expressive, visual or physical conduct of a sexual or gender-motivated nature" when such conduct had the "purpose or effect of creating an intimidating, hostile, or offensive environment." In finding this policy unconstitutional, the court in DeJohn noted that it likely chilled protected speech on gender issues, such as the role of women in the military. The court also held that a high school or elementary school's ability to restrict certain speech did not mean that public universities could limit that same type of speech. According to the appellate court, "we keep in mind that Temple's administrators are granted less leeway in regulating student speech than are public elementary or high school administrators."
This week, the same court of appeals went even further in clarifying the rights afforded university students. In McCauley, the Third Circuit held that courts should not blindly apply the cases governing high school speech to litigation concerning university speech policies. The court gave several reasons why universities are less entitled to restrict speech.
- "The differing pedagogical goals of each institution"
The court observed that while high schools and elementary schools "prioritize[] the inculcation of societal values .... [p]ublic universities encourage teachers and students to launch new inquiries into our understanding of the world."
- "[T]he in loco parentis role of public elementary and high school administrators" and "the special needs of school discipline in public elementary and high schools"
The Third Circuit rightly noted that school authorities in lower levels of education serve as stand-in parents for students, but college administrators do not have that same authoritarian control. According to the court, "[m]odern-day public universities are intended to function as marketplaces of ideas, where students interact with each other and with their professors in a collaborative learning environment." In addition, while strict rules often need to be enforced in lower levels of education, college students are empowered to skip class, manage their own schedules, and use laptops in the classroom responsibly—all privileges normally afforded to college students as adults.
- "[T]he maturity of the students"
Because "research has confirmed the common sense observation that younger members of our society, children and teens, lack the maturity found in adults[,]" juveniles have less responsibility for their actions and are more adversely influenced by social pressures. The lack of emotional maturity of juveniles was a main reason for allowing greater speech restrictions over elementary and high school students in cases involving lewd or offensive speech. As a result, the Third Circuit held that these cases are less instructive when dealing with lewd or offensive speech at universities, where the student body is largely comprised of adults.
- "[T]he fact that many university students reside on campus and thus are subject to university rules at almost all times."
The Third Circuit expressed its concern that if the court gave "public university administrators the speech-prohibiting power afforded to public elementary and high school administrators," the free speech rights of students who live on campus would be constantly circumscribed by university rules.
The court thus concluded that free speech doctrine derived from cases involving high schools and elementary schools should be "scrutinized carefully" before it is applied to the university setting. This pronouncement echoes the arguments made in our amicus brief and the legal scholarship of former FIRE Justice Robert H. Jackson Legal Fellow Kelly Sarabyn. FIRE is pleased that the Third Circuit has taken heed of these arguments. The distinction between the speech protections applicable to universities, on the one hand, and high school and elementary schools, on the other hand, is now even more firmly established in federal precedent.
Permalink | E-mail comments | Posted by Erica Goldberg on August 20, 2010, at 12:56 PM
'Chronicle' Highlights Study of Administrative Bloat at Nation's Universities
August 20, 2010
This week, The Chronicle of Higher Education reported on a study released by the nonprofit Goldwater Institute regarding the continued rise in the number of administrators at our nation's colleges and universities. The Chronicle highlights perhaps the most jarring finding from the study: between 1993 and 2007, the number of administrators for every 100 college students increased by 39 percent, while the number of professors and researchers for every 100 students rose by a comparatively small 18 percent during the same period.
This is a rather dismaying statistic, and it is just the latest manifestation of a trend that FIRE has been decrying for some time now. Universities across the country have in recent decades employed a vast bureaucracy of administrators to patrol their campuses, and they continue to do so today in alarming proportions. The result is that university administrations over-regulate students' lives, often to absurd levels. It's no secret that these administrators need to justify their often-inflated salaries somehow—and, all too typically, at the expense of the individual rights and liberties of students. Rather than make better use of their budgets to enhance students' educational experiences, offer more and better courses, and otherwise bolster the curriculum, too many schools have chosen to bureaucratize their institutions, and the Goldwater Institute study reveals this trend once again.
When I speak of the bureaucratization of the modern American university, I am borrowing from FIRE Co-founder and Board Chairman Harvey Silverglate, who has railed against this trend for years now. Take, for instance, this piece he wrote for Minding the Campus in 2008. In it, Harvey convincingly made the point that universities have no business accumulating such large armies of administrators on their campuses:
No serious person can really argue that a student body needs such bureaucracy to participate in the civilized life of the university, much less in order to become an educated person. We are not talking, after all, about some war zone replete with carnage, rape and pillage, and genocide. We are talking instead about communities of higher learning where students have lived, worked, and studied together for centuries, long before the advent of the modern armies of administrators seeking to keep the peace and enable different groups of students to survive the often-bruising ego-assaults that are a normal part not only of growing up, but of exposure to the world of sometimes disturbing ideas. As Alan Charles Kors and I noted in our 1998 book, The Shadow University, "most students respect disagreement and difference, and they do not bring charges of harassment against those whose opinions or expressions 'offend' them." Yet today, we observe, "the universities themselves ... encourage such charges to be brought." Surely massive administrative bureaucracies of student life must be maintained if universities are going to enforce the increasingly ubiquitous—in academia—"right" not to be offended.
Harvey also argued that universities could be using the money they spend on hiring ever more administrative bureaucrats to bolster the education they offer to students:
If our colleges and universities cut back on their enforcement bureaucracies, it is quite possible, indeed likely, that an increase in students' liberty (not to mention an improvement in their ability to get along with and even help educate one another) would result. This would also increase the availability of additional funds to support faculty size even in the face of diminishing endowments and fund-raising.
This point has been echoed on numerous occasions elsewhere, including in an article in the Chronicle this July. Indeed, we saw recent news out of Washington State University that the university would be cutting three of nine vice president positions "in a reorganization driven primarily by budget forces," and that the university expected to "see immediate savings of $700,000 to $900,000" as a result. That's a lot of money saved by cutting only three positions. With the money saved, Washington State has the ability to add to its faculty ranks and in other ways enhance its curriculum. Or, think of how many more students could attend Washington State on significant scholarships.
I encourage readers interested in following up and reading more about these issues to take a look at Harvey's full article for Minding the Campus. I also encourage readers to take a look at the Goldwater Institute's study, an executive summary of which is available here. Both the study and Harvey's piece are well worth your time.
Permalink | E-mail comments | Posted by Azhar Majeed on August 20, 2010, at 10:23 AM
Greg Interviewed about the Dangerous Likelihood of Colleges Misinterpreting 'CLS v. Martinez'
August 19, 2010
This June, in a 5-4 ruling, the Supreme Court upheld the constitutionality of the University of California Hastings College of the Law's "all comers" policy in the case of Christian Legal Society v. Martinez. According to this ruling, a college can require all student groups to accept all prospective members and allow them to become voting members and leaders, even if they are fully antagonistic toward the group's mission.
Unfortunately, the negative effects of the Martinez decision will likely be felt not just at Hastings, but at universities across the nation, as the Heartland Institute's Ben Boychuk reports in School Reform News. Boychuk interviewed FIRE President Greg Lukianoff, who said that even though the language of Martinez clearly states that universities are not mandated to adopt "all comers" policies, many will incorrectly claim that the decision requires them to do so.
You can listen to the interview in this recent podcast. Greg warns:
[S]ince I'm used to seeing a fair amount of misrepresentation at universities, they're going to interpret the Supreme Court as essentially requiring them to have "all-comers" policies. Which [the decision] absolutely does not say and did not do.
One school's lawyers even have gone so far as to misrepresent the case as requiring courts to simply "defer to decisions of educational administrators, even in the free speech context and even in higher education." (In fact, the Court said quite the opposite as it evaluated Hastings' policy.) Greg notes that universities are now more likely to expect deference regarding speech restrictions that they do not deserve and will rarely if ever get:
The practical results of this case will be we see a lot of cases to 'derecognize' groups, particularly evangelical Christian groups on campus, and a lot of attempts to use the wording of the opinion to justify everything from speech codes to speech zones.
FIRE and the Alliance Defense Fund have sought to refute the notion that the Martinez decision gave carte blanche to university administrators. As Erica noted in an earlier blog entry here on the The Torch,
The Supreme Court held only that public universities do not violate students' freedom of association when they require official student organizations to accept all students as voting members and leaders.
That's it. Martinez applies in a specific way to one specific student organization policy, not to university speech codes, which consistently lose in court--as recently as yesterday.
It is still to be seen how many universities will adopt "all comers" policies and how much these policies will contribute to the demise of activist, political, and religious organizations on campus. Greg gives us significant cause for concern for the ability of student groups to gather around shared beliefs and goals with integrity.
You can read the full Heartland Institute article here and listen to Greg's podcast interview here.
Permalink | E-mail comments | Posted by Jordan Fischetti on August 19, 2010, at 4:19 PM
FIRE's CLE Course Now Approved for Attorneys in Pennsylvania
August 19, 2010
FIRE's first-ever Continued Legal Education (CLE) course, set to take place September 14, 2010, in New York City, has now been accredited by Pennsylvania's Continuing Legal Education Board. Specifically, our program has been approved by the Pennsylvania Continuing Legal Education Board for 1.5 hours of substantive law, practice and procedure CLE credit. This means that the CLE course is now available for CLE credit to attorneys in Pennsylvania, in addition to attorneys in New York. We are very pleased by this development and the opportunity to offer our course to more attorneys interested in learning about FIRE's issues.
Our CLE course, entitled "Free Speech 101: Protecting Free Expression and the First Amendment at our Nation's Colleges and Universities," will provide an in-depth examination of the state of the law on freedom of speech on today's college campuses. Interested attorneys may register for the course online via this link, or by simply clicking the button below:
Our course is appropriate for both newly admitted and experienced attorneys. Registration costs $40, and financial aid is available. (See our course information page for more details.) Members of FIRE's Legal Network may attend free of charge and should register by contacting FIRE.
Attorneys in the Commonwealth of Pennsylvania, like their peers in New York, should take advantage of this opportunity to engage in a unique, interesting, and worthwhile educational experience. At a very affordable cost, and at considerable convenience, registering for our CLE is a smart choice indeed.
Permalink | E-mail comments | Posted by Azhar Majeed on August 19, 2010, at 10:30 AM
Victory for Free Speech: Third Circuit Strikes Down University of Virgin Islands' Speech Codes
August 18, 2010
The United States Court of Appeals for the Third Circuit issued an opinion today in McCauley v. University of the Virgin Islands striking down unconstitutional speech policies maintained by the University of the Virgin Islands (UVI) on First Amendment grounds. As our press release details, the appellate court's decision is a momentous victory for freedom of speech on campus.
The Third Circuit—whose jurisdiction includes the Virgin Islands as well as Pennsylvania, New Jersey, and Delaware—found the university's regulations prohibiting "offensive" or "unauthorized" signs and conduct causing "emotional distress" unconstitutional. The Third Circuit also upheld the federal district court's invalidation of a policy that forbade causing "mental harm" or "demean[ing]" or "disgrac[ing]" any person. In December 2009, FIRE filed a friend-of-the-court brief urging the Third Circuit to reach this result.
The case got its start in May 2009 when former UVI student Stephen McCauley filed suit against UVI in the U.S. District Court of the United States Virgin Islands, alleging that UVI's application of its "Hazing-Harassment" policy against him violated his First Amendment rights. The policy prohibits "any act which causes ... mental harm or which ... frightens, demeans, degrades or disgraces any person." McCauley also alleged that UVI was violating the First Amendment rights of all UVI students by maintaining this policy and other facially unconstitutional speech codes, including regulations prohibiting "offensive" or "unauthorized" signs and conduct causing "emotional distress."
In an August 2009 opinion, the district court invalidated UVI's Hazing-Harassment policy as unconstitutionally overbroad, but allowed two other constitutionally flawed policies to remain intact. Making matters worse, the district court's opinion incorrectly analyzed collegiate speech restrictions by applying court decisions concerning grade school and high school speech standards, something that FIRE has long argued against here on The Torch, in our legal scholarship, and elsewhere.
McCauley appealed the ruling in September 2009. On December 22, 2009, FIRE filed an amicus curiae brief with the Third Circuit, asking the court to stand by its landmark decision in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), and to reverse the lower court's ruling upholding the flawed policies. Attorney L. Theodore Hoppe, Jr., a member of FIRE's Legal Network, represented FIRE in the filing.
Today's ruling, authored for a unanimous panel by Judge D. Brooks Smith, strikes down the two flawed UVI policies upheld by the lower court. Noting that a "desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students," the Third Circuit found UVI's policy forbidding "offensive" or "unauthorized" signs to be unconstitutionally overbroad. Similarly, citing its opinion in DeJohn, the court found UVI's prohibition of conduct causing "emotional distress" equally untenable, deeming the policy "entirely subjective" and finding that it "provides no shelter for core protected speech." The opinion notes that under this unconstitutional policy, "[e]very time a student speaks, she risks causing another student emotional distress," concluding that this "heavy weight" does "substantial" damage to free speech on campus.
The Third Circuit's ruling is thus yet another blow to campus speech codes and their proponents. As Robert states in today's press release, "Today's landmark ruling in favor of free expression on campus is still more proof that unconstitutional speech codes, when challenged in court, will not and cannot survive proper judicial scrutiny." As the second decision by the Third Circuit in three years to invalidate a speech code, following DeJohn in 2008, McCauley sends the message loud and clear to university administrators in the appellate court's jurisdiction that they risk legal defeat for maintaining speech codes on their own campuses. Moreover, as yet another decision joining the ranks of over two decades of speech code precedent from across the country, McCauley should send the same message to administrators everywhere. McCauley is the third federal appellate court decision to invalidate a university speech code, and administrators who ignore these rulings do so at their own peril.
Significantly, the Third Circuit's opinion also spells out at length the sharp distinction between the relatively limited First Amendment rights afforded to high school students and the robust right to freedom of expression enjoyed by college students, a difference ignored by the lower court and argued at length in FIRE's brief. Citing "the differing pedagogical goals of each institution, the in loco parentis role of public elementary and high school administrators, the special needs of school discipline in public elementary and high schools, the maturity of the students, and, finally, the fact that many university students reside on campus and thus are subject to university rules at almost all times," the Third Circuit held that "[p]ublic universities have significantly less leeway in regulating student speech than public elementary or high schools." This is a critical part of the opinion, and we will have more to say on the Torch about the Third Circuit's recognition and treatment of these principles.
Today's decision from the Third Circuit is indeed cause for celebration for anyone who values open discourse and a free exchange of ideas on campus. We are happy to report this victory, and we will have more coverage of it in the coming days.
Permalink | E-mail comments | Posted by Azhar Majeed on August 18, 2010, at 4:57 PM
At Michigan State, Student E-mail in Same Class as Phishers and Scammers
August 18, 2010
A brief article in Michigan State University's (MSU's) student paper The State News carries some interesting tidbits about MSU's technology services department, namely its proficiency in keeping "spam" e-mail messages out of MSU's computer network. The State News writes:
Each day, MSU's Academic Technology Services, or ATS, mail system blocks about 400,000 junk mail - or spam - messages from reaching users' mailboxes, ATS Communications Manager Katherine Ball said in an e-mail.
And with each passing day, the system processes about 1 million messages that have been sent or received, a majority of which are spam messages.
I imagine that many of those 400,000 spam messages are phishing schemes such as this one, which landed in one of my colleagues' inboxes last night:
FROM: DIPLOMATIC AGENT
I am a Diplomat named Mr. Dom May, mandated to deliver your inheritance to you in your country of residence.
Send the requested information so that we can proceed.
The funds total US$7.5 Million and you were made the beneficiary of these funds by a benefactor whose details will be revealed to you after handing over the funds to you in accordance with the Agreement I signed with the benefactor when he enlisted my assistance in delivering the funds to you.
I am presently at JFK Airport in the United States of America and before I can deliver the funds to you, you have to reconfirm the following Information so as to ensure that I am dealing with the right person
1. Full Name
2. Residential
3. Age
4. Occupation
5. Direct Telephone
After verification of the information with what I have on file, I shall contact you so that we can make arrangements on the exact time I will be Bringing your package to your residential address.
Regards
Mr. Dom May
The MSU community, I'm sure, is quite happy not to be deluged with e-mails from "Dom May" and his ilk. But unfortunately, MSU's current bulk e-mail policies do little to distinguish suspicious (not to mention appallingly spelled) advertisements for male enhancement drugs and dispatches from deposed dictators and exiled diplomats from the sincere efforts of MSU students trying to bring attention to matters of public concern.
Just ask Kara Spencer, who in 2008 was found guilty of spamming after circulating an e-mail raising awareness of an impending change in MSU's academic calendar to a carefully selected group of 391 faculty members.
The State News notes one MSU professor's observation that MSU's e-mail network has over the years become increasingly central to the routines of MSU community members, further underscoring its importance as a vehicle for transmitting information and opinions about the issues of the day. This central hub for student speech, however, is straitjacketed by MSU's exceedingly harsh "Appropriate Use of MSU E-mail" policy. MSU enacted this policy after having to back down in Spencer's case under pressure from FIRE, and the revised policy is actually much harsher than the old one.
The revised policy defines bulk e-mail as "The transmission of an identical or substantially identical e-mail message within a 48-hour period from an internal user to more than 10 other internal users who have not elected to receive such e-mail." The policy also states that MSU's e-mail services "are not intended as a forum for the expression of personal opinions." Since it is patently ridiculous to expect all MSU users to refrain from expressing personal opinions on e-mail, this policy can only be explained as an effort to give MSU an excuse for punishing opinions that prove unpopular with administrators.
Every student organization at MSU should be appalled by the speech restrictions in this unconstitutional policy, for which Michigan State is on FIRE's Red Alert list. MSU may do what it can to keep its servers clear of potentially harmful spam e-mails, but it is well past time that MSU stopped putting important messages like Spencer's in the same category.
Permalink | E-mail comments | Posted by Peter Bonilla on August 18, 2010, at 9:49 AM