The Associated Press has picked up Susan Snyder’s excellent Philadelphia Inquirer reporting on Bucknell University’s pattern of shutting down events run by the Bucknell University Conservatives Club (BUCC). As FIRE’s press release points out, Bucknell not only shut down BUCC’s satirical affirmative action bake sale but also refused to let BUCC hold any such sale in the future, falsely citing Bucknell’s nondiscrimination policy when administrators had to come up with some kind of pretext. Earlier, Bucknell had shut down BUCC’s distribution of "Obama stimulus dollars" in protest of President Obama’s stimulus plan, in that instance falsely citing the university’s solicitation policy.
The Wall Street Journal‘s Ashby Jones also has picked up the story for the Wall Street Journal‘s law blog:
[A] group called FIRE (Foundation for Individual Rights in Education) got involved, sending off this doozy of a letter to Mitchell last month, protesting not only the bake sale move, but an earlier move in which the same conservative group was prohibited from passing out anti-stimulus handbills in the form of fake dollar-bills that portrayed President Obama.
Wrote Adam Kissel, a director at FIRE:
Bucknell is not the only university that has attempted to shut down an affirmative action bake sale protest on the ground that it is "discriminatory." [Others have] attempted to shut down affirmative action bake sale protests or punish their sponsors on similar grounds. FIRE intervened in each of these cases and the institutions relented, realizing that attempting to silence this type of political protest runs afoul of free expression and opens the institution to legal liability for violating the First Amendment, or the university’s contractual promises of freedom of expression, or both.
But Bucknell was undeterred. The school’s general counsel, Wayne Bromfield, sent back this letter earlier this month, stating that neither "instance is a matter of free speech. To the contrary, they are matters of campus safety and fairness." On the bakesale issue, Bromfield stated: "disparate racial pricing for doughnut sales – was prohibited because we cannot and do not permit facially discriminatory practices."
So who, legally, is in the right here? It’s tough to say. Sheldon Steinbach, a Washington-based higher education law expert, told the Inquirer that for private universities, such a decision was a "judgment call."
We checked in with Kissel, who conceded that the First Amendment probably didn’t apply to Bucknell, a private university. That said, Kissel said he was "sure" that he and the group were on the right side of the legal battle. The school’s Student Handbook instructs students not only that they have freedom of speech but that "deliberate interference" with this freedom is prohibited. "It could create a contractual issue," said Kissel.
Jones got Bucknell back into the debate via Bucknell spokesman Tom Evelyn:
We also checked in with Tom Evelyn, a spokesman for Bucknell, who said "this is not a free speech issue at all." He said that in regard to the Obama dollars, the students hadn’t followed the right protocol to distribute leaflets. And the bake-sale "violated the anti-discrimination policy. That much is very clear."
The issue could flare up anew in the fall. Travis Eaione, one of the group’s members, told the Inquirer the group might try to hold another similar bakesale when students are back.
Answered Bucknell’s Evelyn: "If it’s the same kind of bakesale, we’ll have the exact same objections."
And Bucknell will be just as wrong. Bucknell has said that even satirical, "recommended," non-binding pricing violates the anti-discrimination policy, and that’s plainly false.
As Snyder’s article notes, BUCC’s problems with Bucknell’s abuses of student rights (Bucknell is a private university that promises freedom of expression) date back several years. Just ask the Bucknell alumni who run the Alliance for a Better Bucknell. It seems that Bucknell’s repressive habits have been backfiring, as such efforts usually do, with several Bucknell alumni (including filmmaker Evan Maloney and the Independent Women’s Forum‘s Allison Kasic) having become activists for freedom of expression on college campuses.
The Boston Herald also has reprinted Snyder’s article online in its Politics section.
Meanwhile, the Inquirer article is garnering heavy attention locally. The Inquirer‘s Philly.com homepage is running a poll, "Should the bake sale have been allowed to continue?," which has gathered more than 365 votes as of 2:45 pm (with 68 percent voting Yes and 9 percent wanting more information). Nearly 100 comments have appeared on the article as well. The article is also listed on both the "most viewed" and "most shared" lists right now and has been rising on the charts.
And the Bluftooni blog has published a wonderful pair of images of a different affirmative action bake sale and its economic cousin, a "pay equity" bake sale in which protesters charge different amounts on the basis of average earnings by race and gender in order to bring attention to disparities in average wages. Both kinds of protests must be permitted wherever freedom of speech is promised.