July 25, 2007
Wilson G. Bradshaw
President, Metropolitan State University
700 East 7th Street
St. Paul, MN 55106-5000
Sent via U.S. Mail and Facsimile (651-793-1907)
Dear President Bradshaw:
As you can see from our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, due process, the right of conscience, and academic freedom on America’s college campuses. Our website, www.thefire.org, will give you a fuller sense of our identity and activities.
I write to express our grave concern about the threat to the freedoms of speech and conscience—as well as to individual liberty, dignity, and autonomy—posed by Metropolitan State’s University Community Conduct Code. Even though it declares that “the university is an open, honest community; freedom of expression protected,” the remainder of the code abandons that protection. In its section on standards, the code states:
Individuals are expected to respect the rights, privileges and property of others.
Examples of violation are: threats, physical or verbal abuse, class disruption, sexual harassment and manifestations of prejudice regarding race, ethnicity, religion or sexual orientation, unauthorized possession of property.
Possible sanctions: warning, confiscation, compliance, probation, suspension, expulsion, community service or appropriate sensitivity training.
As a public university funded by taxpayers, Metropolitan State is bound by the First Amendment to protect students’ freedoms of speech, association, religion, and conscience. No matter how objectionable a student’s particular beliefs might be to Metropolitan State administrators, a public entity may not punish students for lawfully expressing those beliefs, nor attempt to coerce them into believing differently.
Regardless of how the Conduct Code may have been enforced in the past, or how it is expected to be enforced in the future, it is, on its very face, an unconstitutional delegation of discretion to conduct officers and administrators. “Manifestations of prejudice” cannot realistically be limited to true harassment or intimidation, which may constitutionally be prohibited, but rather extends to countless forms of protected speech.
While its language is already unconstitutionally overbroad, the Conduct Code indicates that it does not even encompass the full extent of expression that may be punished. It notes, “The following examples of violations are illustrative only; other behaviors may also violate the standards.” It would be impossible to list or even imagine all of the ways that a student could commit a violation of “respect” for another person’s rights. The code piles excessive discretion atop excessive discretion, to the point where students cannot predict which exercises of their constitutional rights will result in punishment.
Also alarming is your list of possible sanctions that may be enacted against a student engaged in protected speech. While the code notes that the list of sanctions is also not exhaustive, it includes “appropriate sensitivity training,” which is later defined by another less-than-comprehensive list: “Examples are attendance at appropriate workshops, readings or other activities designed to enhance sensitivity of individual in area of violation.” This unclear language indicates that administrators have the option, at their exclusive discretion, to send students to workshops and programs designed to force students to espouse the “sensitive” views preferred by the university, in clear violation of their freedom to believe whatever they wish. As dangerous as it is to tell citizens what they can and cannot say, it is far worse to tell them what they must say and must believe. Such utter disregard for the autonomy and agency of others is the hallmark of totalitarianism and has no place at an institution of higher learning in any free society, let alone at a public university in the state of Minnesota.
Metropolitan State needs to further understand the dangers of such a speech policy. Not only does the Conduct Code, as stated, invite punishment for protected forms of expression, but it also cannot help but have the effect of eliminating the discussion of controversial topics. When students cannot be sure that their speech will be protected to the proper extent, they will most likely keep their beliefs to themselves to avoid punishment or re-education.
This chilling effect may very well have been the university’s intention in enacting its policies. But while there may be well-intentioned reasons to prefer the calm of politically correct speech and beliefs to potential conflict and dispute, such a preference runs contrary to the very principles behind our Bill of Rights. As the Supreme Court declared in the landmark case of West Virginia Board of Education v. Barnette (1943): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith [in it].” The Court concluded that “the purpose of the First Amendment to our Constitution” was precisely to protect “from all official control” the domain that was “the sphere of intellect and spirit.” And as the Court noted in Terminiello v. Chicago (1949), the “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.” Nowhere are these statements more applicable than on the campus of a public university, where young adults should have the freedom to define their own beliefs by exposure to an open marketplace of ideas. Metropolitan State’s policies violate both the Constitution and the university’s own commitments to diversity and education.
Your very own welcome letter on the Metropolitan State webpage proclaims to current and prospective students that “[y]our education at Metropolitan State is further strengthened by the diversity of the faculty and student body. This makes for a marvelous exchange of ideas and more effective learning.” If you are indeed serious about promoting learning through the exchange of diverse ideas, you will eliminate this overly broad and unconstitutional ban on protected student speech, and guarantee to your students that they will not be forced to accept or espouse anyone else’s beliefs through coercive training programs. That as a public university it is your constitutional obligation to do so should be of secondary importance to upholding the promises you have made to your students and fulfilling the educational mission you have set for yourself.
Please spare Metropolitan State the embarrassment of fighting against the Bill of Rights, by which it is legally and morally bound. Metropolitan State must immediately revise its policies to be consistent with the requirements of the First Amendment. FIRE hopes to resolve this situation amicably and swiftly; we are, however, prepared to use all of our resources to see this situation through to a just and moral conclusion.
We request a response on this matter by Wednesday, August 15, 2007.
Director of Legal and Public Advocacy
Arthur McCoy, Interim Vice President for Student Affairs, Metropolitan State University
William Lowe, Provost, Metropolitan State University