FIRE Letter to Indiana University – Bloomington President Michael A. McRobbie

By January 31, 2014

January 31, 2014

President Michael A. McRobbie
Indiana University – Bloomington
Office of the President
Bryan Hall 200
Bloomington, Indiana 47405

Sent via U.S. Mail and Facsimile (812-855-9586)

Dear President McRobbie:

The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals 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 by the threat to free speech presented by Indiana University – Bloomington’s (IUB’s) charge of “personal misconduct”—which includes “disorderly conduct” and “disruptive behavior”—against student Andrew Hsu on the basis of a single email he sent to a professor during winter break. Hsu’s lone email is entirely protected by the First Amendment and any conduct charges on the basis of such expression violate Hsu’s constitutional rights. IUB must dismiss this charge against Hsu immediately.

This is our understanding of the facts. Please inform us if you believe we are in error. On December 21, 2013, at 11:00 p.m., Andrew Hsu sent an email to IUB Professor [REDACTED] regarding the scheduling of his class section’s (PSY-P 101-5214) Introductory Psychology I final exam. The exam was held at 5:00 p.m. the previous evening, December 20. The body of Hsu’s email reads in full:

I just want to take a moment to personally thank you for the $500 or so that you cost me for having the final on Friday. You saw that many people had issues/ conflicts with the final in lecture, yet what did you do? You decided to blow over it like nothing happened. You as an instructor have the power to change these kinds of things. Excuses such as not having enough proctors etc are not acceptable from a capable person of such high caliber as yourself. Where there is a will, there is ALWAYS a way. Next time or in the future I hope you will take student opinions and ideas seriously, and not blow them off like you did in lecture. (12:20-1:20pm) The day you left class early because your son was hurt… in the same way you can not imagine that we students have places to be, people to see (our families) rather than sit in a stifling room Friday evening for a final? I expect a professor to make an effort to understand that students have lives outside of academia, just as you have a family and other obligations that need to be fulfilled.

In a letter dated January 14, 2014, Office of Student Ethics Assistant Director Leila Faranesh informed Hsu that “[t]he Dean of Students has received a report concerning your alleged involvement in actions which are against University regulations.” As a result, IUB charged Hsu with the following violation of IUB’s Code of Student Rights, Responsibilities, and Conduct:

Part II, H. Personal Misconduct on University Property./H6 — Disorderly conduct, including obstructive and disruptive behavior that interferes with teaching, research, administration, or other university or university-authorized activity.

Faranesh’s letter made clear that the charge was related solely to Hsu’s December 21 email:

Specifically, on December 21, 2013, it is being alleged that you sent an inappropriate email to Professor [REDACTED] concerning the timing of the scheduled final for P101.

[Emphasis added.]

Pursuant to IUB’s Code of Student Rights, Responsibilities, and Conduct, a judicial conference was held on January 22. Hsu reports that he was told that while IUB is not sanctioning him at this time, it is keeping this case “open” in the event of possible future incidents. IUB has not provided Hsu with any written statement regarding the current status of his case or the outcome of his judicial conference.

Hsu’s single email to [REDACTED] was fully protected by his right to freedom of speech and both IUB’s charge against him and the threat of future disciplinary action are a clear violation of his First Amendment rights. Further, no reasonable interpretation of IUB’s conduct policies can conclude that Hsu’s email was “disorderly,” “obstructive,” or “disruptive” to such an extent that it merited investigation or punishment.

That the First Amendment’s protections fully extend to public universities such as Indiana University – Bloomington has long been settled law. See, e.g., Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted) (“[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.’”); 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.”).

In particular, the principle of freedom of speech does not exist to protect only tame, civil, and inoffensive speech; indeed, it exists precisely to protect speech that some members of a community may find controversial, offensive, or annoying—even greatly so. The right to free speech includes the right to say things that are deeply offensive to many people, and the Supreme Court has explicitly held, in rulings spanning decades, that speech cannot be restricted simply because it offends people. In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held 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.’” 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.”

Hsu’s email plainly did not constitute misconduct. IUB’s “Personal Misconduct” policy applies to conduct that “interferes with teaching, research, administration, or other university or university-authorized activity.” It is at best highly dubious that Hsu’s December 21 email could constitute such interference, especially since IUB’s fall term ended on December 20. Even if Hsu’s email could be considered a disruption—which it simply cannot, under any reasonable reading of his communication—there was no university business for the email to disrupt. No matter how unreasonable [REDACTED]’s reaction to Hsu’s complaint, his email cannot reasonably be said to interfere with the act of grading papers. IUB’s conclusion to the contrary is flatly without merit.

Further, the fact that IUB has employed a policy crafted to deter disruptive and disorderly conduct (repeated and aggressive disruptions of class lectures, for example) to investigate or punish protected speech, in this case a single email, is deeply chilling. IUB’s action subjects large swaths of student expression to unconstitutional investigation and punishment and dramatically lowers the threshold speech must clear to become targeted for discipline. All a faculty member or administrator must do under this untenable precedent is to complain that someone’s speech caused even a slight amount of distress or discomfort, and the speaker may be subjected to investigation and punishment. This is an unacceptable and unconstitutional result.

Occasional unpleasant interactions with students are an inevitable part of the academic profession. While it is entirely natural to yearn for and encourage civility in such interactions, the solution is not to impose sanctions on those whose expression falls short of this goal. It may be instructive to consider United States Magistrate Judge Wayne Brazil’s order, on First Amendment grounds, prohibiting administrators in the entire California State University System from enforcing a “civility” policy against student speech:

There also is an emotional dimension to the effectiveness of communication. Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. […] Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. […] Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. […] In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.

College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005, 1018–20 (N.D. Cal. 2007).

Indiana University – Bloomington must dismiss its charge against Andrew Hsu and permanently close this case, ensure that no record of the improper charge will be reflected in his student file, and make clear that Hsu will not face investigation or punishment for similar expression in the future. FIRE further asks IUB to clarify that its Personal Misconduct policy will be used for its lawful purpose of deterring conduct that is disruptive to its teaching and administrative functions and not to police protected expression its faculty or staff consider inappropriate.

We have enclosed a signed FERPA waiver from Andrew Hsu, permitting you to fully discuss his case with FIRE.

We request a response to this letter by February 14, 2014.

Sincerely,

Peter Bonilla
Director, Individual Rights Defense Program

Encl.

cc:

Harold Goldsmith, Dean of Students
Jason A. Casares, Associate Dean of Students and Director, Office of Student Ethics
Leila Faranesh, Assistant Director, Office of Student Ethics

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Schools: Indiana University – Bloomington