Letter from FIRE to Asnuntuck CC Interim President James P. Lombella

By January 13, 2014

January 13, 2014

James P. Lombella
Interim President
Asnuntuck Community College
170 Elm Street
Enfield, Connecticut 06082

Sent via U.S. Mail and Facsimile (860-253-3007)

Dear President Lombella:

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

FIRE is concerned about the threat to free speech and due process posed by Asnuntuck Community College’s (ACC’s) investigation and punishment of student Nicholas Saucier. In addition to sanctioning Saucier for what appears to be protected expression, ACC repeatedly refused to consider video evidence Saucier offered in his defense and denied him basic due process protections, compromising the hearing process. Because of these violations of Saucier’s rights, the sanctions levied against him must be rescinded.

This is our understanding of the facts. Please inform us if you believe we are in error.

On October 23, 2013, Connecticut Governor Dannel Malloy visited ACC to speak as part of an employment conference hosted at the college. According to the November 2013 edition of the News @ ACC newsletter, the “Step Up” conference offered local companies an opportunity to learn “how to expand their business and help veterans and state residents.” When Governor Malloy was leaving the conference, Saucier approached him and asked if he could discuss his own experiences as a veteran and small business owner. Governor Malloy agreed, asking Saucier to talk with him as he walked to his car. According to Saucier, he also consented to having the conversation recorded. As Saucier’s recording shows, Saucier began discussing the impact of recent gun legislation on his business, asking Governor Malloy for advice on how to respond to new restrictions on gun manufacturing. Saucier alleges that as the conversation progressed and he continued to press the issue, you personally restrained him physically and attempted to move him away from the governor, an act partially captured on video. Just seconds later, when Governor Malloy stepped into his car and effectively ended the conversation, Saucier called out to him, “You’re a snake.” Saucier then paused his recording.

According to Saucier, you then followed him into an ACC building, asking him his name and informing him that you were ACC’s president. At this point, Saucier once again began recording. Throughout this second video, Saucier verbally insists that both you and the security officer not touch him, and he is recorded yelling to fellow students about his treatment by staff. Saucier was led inside by you and then off campus by a campus security officer, who instructed Saucier that he would need to contact Dean of Students Katie Kelley for information about his ability to return to the College. (The videos’ time stamps suggest a gap of roughly 50 seconds between the end of the first recording and the beginning of the second recording.)

Later that same day, Kelley sent Saucier a letter notifying him that he had been “banned from the Asnuntuck Community College campus pending a meeting with me to discuss an incident … that occurred earlier today.”

Kelley and Saucier met five days later, on October 28. Kelley explained the accusations against Saucier, alleging that he had caused a disruption and had acted in a threatening manner. According to Saucier, when he informed Kelley that he had video recordings of the events (which he believed refuted the claims against him), she declined to view the videos and requested that Saucier turn over all copies of the recordings to the school.

Immediately following the conclusion of this meeting, Kelley prepared and provided Saucier with a letter placing him on interim suspension, informing Saucier that “your continued presence on campus would present a danger to the persons, property and/or academic process of the College.” This letter further explained that Saucier would be subject to criminal trespass charges if he were to return to campus and that the suspension would be in place “until further written notice.”

On November 6, Saucier received a letter from Kelley that listed the factual allegations and corresponding conduct code violations against him. According to that letter, Kelley’s investigation determined that Saucier had been “aggressive and hostile” during his conversation with Governor Malloy, had called him “a F* Snake [sic],” and had become “increasingly escalated in [his] tone and aggressive and hostile in [his] demeanor and thus created a perceived threat.” As a result, the letter claimed that Saucier had “created a disruption of a College sponsored program and created a perceived threat,” for which ACC charged him with the following violations of its Policy on Student Conduct:

No. 4a. Demonstrate respect for others by refraining from conduct that constitutes a danger to the personal health or safety of oneself or others … including guests …

No. 4b. Refraining from conduct that disrupts, obstructs, or seriously impairs or attempts to disrupt, obstruct, or seriously impair classroom, College-sponsored or College-authorized activities.

In addition to these charges, Kelley made allegations regarding Saucier’s behavior towards you, arguing that he had “demonstrated disrespect and aggression by swearing, screaming and approaching [your] personal space” after you “tried to intervene” in his conversation with Governor Malloy. The letter also claimed that Saucier had “increased fear of a threat” when he “reached into [his] personal belongings to pull something out which was perceived to be a possible weapon” but was in fact a video recorder, which he then allegedly “wave[d] in [your] face.” Kelley explained that these actions violated several provisions of Section 3 of the Policy on Student Conduct, including:

No. 4c. Demonstrate respect for others by refraining from harassment, which is defined as conduct that is abusive or which substantially interferes with a person’s pursuit of his or her customary affairs;

No. 4d. Refrain from intentionally causing harm or attempting to cause injury to another, including refraining from behavior that reasonably creates in another person a reasonable fear, apprehension or threat of physical harm;

No. 7. Comply with the directions of College staff members acting within the scope of their employment responsibilities;

No. 10. Refrain from unauthorized use of electronic or other devices to make an audio or video record of any person on campus without his/her prior knowledge or without his/her prior consent;

No. 11. Demonstrate good citizenship by not engaging in conduct prohibited by federal, state, or other laws;

[Emphases added.]

Explaining that Saucier was facing possible expulsion, the letter offered him two options for resolution of the charges: a “written agreement in lieu of a hearing” or a formal hearing. Were he to accept the written agreement, the letter explained that Saucier would have to accept responsibility for all conduct charges and “voluntarily withdraw” from ACC. The agreement provides no indication of when Saucier may be readmitted, other than to state that he would be banned from ACC “until further notice from the College’s Dean of Students.” Further, readmission to ACC would be contingent on completing “an appropriate professional evaluation and all recommended follow-up measures, as well as other additional measures the Dean may require.”

Kelley’s letter also summarized the formal disciplinary hearing procedure. In describing the hearing’s rules, the letter stated:

At the hearing there are no technical rules of evidence. One (1) of the responsibilities of the impartial party or chair of the impartial panel is to decide what information is appropriate to be received for consideration.

Additionally, the letter informed Saucier that “there will be no tape recording or verbatim recording of the hearing made by any person.”

Saucier elected to have a formal hearing, which was held November 18. Given that he was repeatedly denied the ability to record or transcribe the hearing, Saucier prepared his own written account immediately following the hearing’s conclusion. Saucier’s cousin, Jonathan Saucier, who is a sergeant in the Canton Police Department and served as his hearing advisor, also prepared a post-hearing account.

According to their statements, Kelley began the hearing by reviewing the allegations and evidence against Saucier. That evidence included six witness statements regarding the events on October 23. These statements were not made available to Saucier in advance of the hearing. Saucier states that he was given roughly 10 to 15 minutes to review the documents before continuing with the hearing and that he was not allowed access or copy them in the future. Both Nicholas and Jonathan Saucier reported that the testimony included irrelevant references to Saucier’s political activities and false accounts of his argument with Governor Malloy.

Following Kelley’s presentation, Saucier was given the opportunity to refute the charges and challenge the evidence. According to his account of the hearing, Saucier asked the panel to review his video recording of the October 23 incident, which he explained would give a clear account of what had transpired. The panel rejected Saucier’s request and instead asked him to tell the story in his own words. Saucier reports that after he completed his statement and began to directly challenge the testimony provided against him, the panel refused to allow him to continue and claimed he had already challenged the witness accounts through his personal statement.

After Saucier gave his statement, the panel questioned him briefly before concluding for deliberations. The next day, November 19, Saucier received a letter notifying him that the panel had found him guilty of all charges. While it lifted his interim suspension and admitted Saucier back onto campus, the panel also formally placed him on probation as a result of its ruling, warning that “ANY future violations of the Expectations for Student Conduct, Board of Trustees Policy on Student Conduct, will likely result in Suspension or Expulsion from the College” (emphasis in original). No end date is given for Saucier’s probation.

Saucier appealed the panel’s decision to your office. Given your involvement in Saucier’s case, you “requested that the Board of Regents review [the] request and prepare this response” to avoid any appearance of bias, according to your November 26 response to Saucier’s appeal. The Board of Regents office found Saucier’s sanctions warranted and the ACC’s due process sufficient. You concurred with their conclusions and upheld the sanctions, finding “that the decision was based on substantial evidence regarding [Saucier’s] reported behavior that was reached after a Hearing conducted in substantial accord with applicable Policy and Law.”

FIRE is deeply concerned about ACC’s violations of Saucier’s rights. Not only has ACC punished Saucier for speech protected by the First Amendment, it appears to have done away with basic due process protections at its discretion, significantly departing from its own written procedures and ensuring a process heavily biased against Saucier. ACC must correct these violations of Saucier’s rights and make clear to all ACC students that their rights will not be abridged in any similar fashion.

We first remind ACC that it has long been settled law that the First Amendment’s protections fully extend to public colleges. See, e.g., Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”) (citation omitted).

In particular, the principle of freedom of speech does not exist to protect only civil or inoffensive speech; it exists precisely to protect speech that some may find controversial, offensive, or annoying. The U.S. Supreme Court has explicitly held, in rulings spanning decades, that speech cannot be restricted simply because it offends some or even many listeners. In Terminiello v. Chicago, 337 U.S. 1, 4 (1949), the Court held that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In the context of public university student speech, the Court has determined that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).

Saucier’s conduct plainly did not constitute harassment, as his videos demonstrate. We note that student-on-student hostile environment harassment in the educational setting must be behavior that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) “so severe, pervasive, and objectively offensive, and … [that] so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). Saucier’s conduct did not meet this threshold, and given the substantial position of influence you enjoy relative to Saucier, a higher—and certainly not a lower—standard would arguably be appropriate for determining whether Saucier had engaged in harassing conduct.

Likewise, Saucier’s speech does not constitute unprotected threats, as ACC’s charges allege. The Supreme Court has defined “true threats,” which are not protected by the First Amendment, as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The Court further elaborated that speech may lose protection as “intimidation,” a form of “true threat,” when “a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 360. From the video evidence FIRE has reviewed—which, again, ACC has repeatedly refused to consider—Saucier’s expression does not come close to crossing this threshold. We further note the questionable nature of ACC’s claims that Saucier “disrupt[ed],” “impair[ed],” or “obstruct[ed]” ACC activities in the course of these comments to Governor Malloy, given that Governor Malloy was leaving the event in question and apparently consented to Saucier recording their conversation.

Further, Saucier’s videos call into question several facts alleged by ACC. For one, they demonstrate Saucier calling Malloy “a snake,” as opposed to Kelley’s more severe allegation that he had called Malloy “a F* Snake.” They also call into question Kelley’s characterization of Saucier’s conversation with Governor Malloy as “increasingly escalated,” “aggressive,” and “hostile,” and they undermine the credibility of ACC’s charge that Saucier’s conduct “constitute[d] a danger to the personal health or safety” of Governor Malloy. We additionally note that there is no record in either of the videos showing that that you made “multiple requests” for Saucier to turn off his recorder or that Saucier “threatened to put the videotape onto YouTube as [Saucier] continued to yell and wave the device in the President’s face.” Saucier strongly contests these characterizations. At the very minimum, Saucier’s videos merited review so that panel members could determine for themselves if they were consistent with the written statements with which they were provided.

When expulsion is a possible sanction for an alleged conduct violation, it is imperative that public colleges like ACC provide students necessary due process protections to ensure that they are given a fair hearing and that universities meet an appropriately high burden of proof before punishing a student. It is alarming that ACC has done the opposite here, substantially departing from its own written procedures and fundamentally biasing the process against Saucier.

We first note Kelley’s statement, in her November 5 letter to Saucier, that the hearing would have “no technical rules of evidence” and that the hearing panel would exercise its discretion to determine what evidence was “appropriate.” Such a provision does not exist in the 2013–2014 ACC Student Handbook, nor in ACC’s 2013–2014 College Catalog, nor in the Policy on Student Conduct available on ACC’s website. The practical effect of placing this condition on Saucier’s hearing was to deny Saucier’s right to present the strongest evidence in his favor: his recordings of the events in question. This denial violated Saucier’s right to “present information” in his defense as provided by Section 6(e) of ACC’s Policy on Student Conduct.

Additionally, ACC’s steadfast refusal to consider the videos when Saucier attempted to refute the evidence brought against him violated Saucier’s right to “question the information presented,” per Section 6(d) of the student conduct policy. There is no moral justification for ACC’s refusal to review and consider the sole (to our knowledge) audio-video account available of the events that led to Saucier’s punishment. That ACC chose instead to rely on written and oral statements when objective video evidence exists belies any notion of fairness ACC claims to enshrine in its policies.

Second, ACC’s requirement that “[t]here will be no tape recording or other verbatim record of the hearing made by any person” is unsupported by ACC policy and is fundamentally unfair. The right to record one’s own disciplinary hearing, or to be provided with a copy of a recording at one’s request, is necessary to ensure the basic fairness and integrity of campus disciplinary proceedings. For this reason, many colleges and universities explicitly grant this right to students—particularly in cases where students may face expulsion. That ACC repeatedly refused to allow any recording or transcription placed Saucier at a severe disadvantage, especially in conjunction with ACC’s refusal to review the strongest evidence Saucier presented in his favor.

These unwritten additions to ACC’s written policies are substantial enough to constitute abridgements of ACC students’ rights—abridgements that students cannot possibly be aware of from reading through ACC’s handbook and other materials. By subjecting Saucier to a disciplinary process markedly different from that contemplated by the college’s written policies, ACC raises serious questions about the fairness of its practices. Does ACC subject every student facing a high-stakes disciplinary hearing to these same denials of their due process rights? If it doesn’t, what factors inform the college’s decision on which unwritten policies will be invoked in hearings for students facing possible expulsion? Does ACC effectively coerce other students to consent to such an illiberal process by making voluntary acceptance of indefinite suspension their only other option? Does ACC regularly decline to provide students with the evidence entered against them at their hearings until the hearings themselves are in progress?

One of two conclusions seems inescapable: Either Saucier’s treatment represents standard ACC practice, or ACC consciously denied procedural safeguards to Saucier that it grants to other students. Each result is unacceptable. ACC has demonstrated that its written policies do not provide ACC students an accurate description of their rights. This should profoundly concern ACC, which is morally and legally obligated to ensure fairness and consistency in its disciplinary proceedings.

ACC’s punishment of Nicholas Saucier has been irrevocably tainted by the due process failures that all but assured this outcome. As such, the resulting sanctions against Saucier must be dismissed. FIRE calls on ACC to restore fairness in its disciplinary procedures and make clear that students will not be denied basic due process protections, especially when they face possible expulsion. If ACC seeks to deny basic rights to students, including the right to a recording of one’s hearing and the right not to be subject to arbitrary rules of evidence, it should have the courage of its convictions to say so in its written policies. Students then will be fully aware of the ways ACC’s disciplinary system works against them and can consider enrolling elsewhere.

We have enclosed a signed FERPA waiver from Nicholas Saucier, permitting you to freely discuss his case with FIRE. We request a response by February 3, 2013.

Sincerely,

Peter Bonilla

Director, Individual Rights Defense Program

Encl.

cc:
Katie Kelley, Dean of Students

Schools: Asnuntuck Community College Cases: Asnuntuck Community College: Student Recording Conversation with Governor Suspended, Deprived of Fair Hearing