Candace de Russy, a member of the State University of New York’s (SUNY’s) Board of Trustees, is also a member of FIRE’s Board of Advisors—the latter position entailing no legal or fiduciary role. So when FIRE coordinated a lawsuit with FIRE Legal Network attorney Robert Goodman against SUNY Brockport’s blatantly unconstitutional speech code, it didn’t take long before the New York State Ethics Commission told Dr. de Russy not to involve herself in board discussions or decisions regarding the lawsuit, or even to talk about it anywhere else. It did not matter to the commission that FIRE did not consult with Dr. de Russy about the lawsuit, or that FIRE was not actually litigating but was just coordinating the lawsuit—the supposed goal was to avoid the appearance of impropriety.
This proved unfortunate, because simply allowing the trustees to do their jobs and warn the university that it was flouting the law could have saved SUNY a lot of embarrassment. SUNY Brockport’s unconstitutional policies banned such things as “cartoons that depict religious figures in compromising situations,” “calling someone an ‘old bag,’” “jokes making fun of any protected group,” and even merely “discussing sexual activities.” That these policies were unconstitutional was obvious to just about everyone except SUNY Brockport administrators and, unfortunately, all too many SUNY trustees.
Unsurprisingly, SUNY Brockport chose to settle the case, change its policies, change all the documentation of its policies, and post notice of the changes in various places around campus. The case had been settled; it was over. FIRE—and liberty—had won the day.
Imagine Dr. de Russy’s surprise, then, when she received a letter from D. Andrew Edwards, Jr., University Counsel for SUNY, reminding her that she was “cloaked with state office at all times” and “[t]hat a settlement agreement in the Brockport litigation [was] reached does not relieve you of the need to avoid a public perception of a conflict of interest, both in your public statements and in your activities as a SUNY Trustee.” It seems that while SUNY was willing to make a concession to free speech in the Brockport case, it was a lot less willing to have one of its own trustees talk freely about the university’s admittedly failed censorship policy.
Dr. de Russy wrote to the Ethics Commission in early March, reminding it that the lawsuit had been settled and that, furthermore, the settlement itself stated that both parties would be free to discuss the litigation. Thankfully, the commission agreed. In a March 24, 2006, letter, Executive Director Karl J. Sleight wrote that “[a]s the litigation is now concluded, you are not precluded from discussing the SUNY Brockport lawsuit with the Board of Trustees or identifying this litigation in public comments or speeches….” It is unfortunate that this eminently logical position escaped SUNY’s own lawyers.
Candace de Russy is now free to speak up in public and in board meetings about the debacle of SUNY Brockport’s unconstitutional speech code—and such discussion is sorely needed. FIRE’s Spotlight identifies at least three other SUNY institutions as having unconstitutional “red light” speech codes. SUNY Brockport had to abandon the worst parts of its code but did not escape a large amount of public condemnation when its speech code came to light. By listening to the advice of Dr. de Russy, maybe other SUNY schools will be able to avoid a similar embarrassing fate.