FIRE’s Second Letter to RIC

By August 31, 2004

August 31, 2004

President John Nazarian

Rhode Island College
600 Mt. Pleasant Avenue

Providence, Rhode Island 02908

URGENT

Sent By U.S. Mail and Facsimile (401-456-8287)

Dear President Nazarian:

Thank you for your response regarding the matter of Professor Lisa Church,
dated August 25, 2004. Before I detail the many concerns your letter raises,
I must emphasize FIRE’s position: there should be no further proceedings
in the matter involving Professor Church
. RIC is in a perilous position.
It is attempting to justify an unconstitutional action by referring to the requirements
of an unconstitutional speech code. However, the college still has an opportunity
to make a decisive statement in favor of the First Amendment and academic freedom.
We sincerely hope that you will join FIRE in defending civil liberties instead
of pursuing a path of censorship and oppression.

We have heard other college administrations claim that they must “investigate”
or at least hold “preliminary meetings” on any complaint that a student brings,
even if the complaint implicates rights protected by the First Amendment. This
practice is simply invalid. If a student complained to you that he felt harassed
when he discovered one of his professors was Catholic, and he could not stand
to be around someone who held such beliefs, it would be clear to all involved
that the situation would not require an investigation. The speech currently
in question at RIC is no less protected by the First Amendment than the hypothetical
professor’s right to have Catholic beliefs. Since this case involves merely
the refusal to punish clearly protected expression, absolutely no reason
exists for RIC to proceed.

We ask you to follow the example of University of Alaska President Mark Hamilton
. Faced with a very similar demand to “investigate” protected expression, President
Hamilton forcefully defended the inviolability of constitutional rights. He
wrote to his administration that “responses to complaints or demands for action
regarding constitutionally guaranteed freedoms of speech cannot be qualified.
Attempts to assuage anger or to demonstrate concern by qualifying our support
for free speech serve to cloud what must be a clear message…There is nothing
to ‘check into,’ nothing ‘to investigate
.’” [Emphasis added] The same conditions
hold true in the case of Lisa Church. We are including President Hamilton’s
sagacious response with this letter.

This is a serious case; therefore, your letter deserves a serious response.
In the pages that follow, FIRE addresses in detail each of the assertions made
in your letter and demonstrates how the very code of conduct you are applying
to Professor Church is an unconstitutional restriction on freedom of speech.

RIC’s Speech Policies are Unconstitutional

The most worrisome aspect of your response is that you rely on a clearly unconstitutional
speech code to justify unconstitutional actions. You cite the code:

Rhode Island College affirms its commitment to ensuring an environment for
all students and employees which is fair, humane, and respectful; an environment
which supports and rewards students and employees on the basis of relevant
considerations, and which is free from discriminatory, inappropriate,
and disrespectful conduct or communication. [Emphasis added.]

We assure you that state institutions have no power to ban speech they find “inappropriate”
or “disrespectful.” As the Supreme Court has said in various ways on numerous
occasions, “If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable
.” Texas
v. Johnson
, 491 U.S. 397, 414 (1989) [1].
Nowhere does this principle apply with more force or urgency than on our nation’s
campuses. I implore you to change course in this case, and to allow free speech
the breathing room it needs to thrive.

We were further distressed to
see that the very next section of the code states:

As an institution
of higher education dedicated to fostering and upholding higher order values of
human dignity and respect for the individual, Rhode Island College expects standards
of professional behavior which exceed those minimally prescribed by law.

The standards “minimally prescribed by law” that this code cavalierly rejects
are, in part, imposed on public institutions because more extensive codes violate
individuals’ basic rights. It is neither noble nor admirable to do away with
the protections of the First Amendment, and it is certainly not within the power
of a state college like RIC to do so. Freedom is a concern of the highest order,
and the Supreme Court has been vigilant in preventing institutions from eroding
freedom in the name of state-sponsored views of propriety. I strongly suggest
you reexamine your code and remove elements that so clearly attempt to abrogate
the rights provided by the Constitution of the United States and decades of
Supreme Court case law.

In our first letter (attached), we explained that the First Amendment does
not tolerate bans on offensive speech even if such a ban is re-characterized
as punishing only “harassment” or “discrimination.” We have even seen indications
that RIC may now be attempting to reclassify this incident with Lisa Church
as one involving “intimidation.” If the college is considering this approach,
we highly recommend that it familiarize itself with Virginia v. Black,
538 U.S. 343, 360 (2003), which states, “Intimidation in the constitutionally
proscribable sense of the word is a type of true threat, where 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.” Nothing in RIC’s situation indicates
that anyone was in fear of physical harm in any objectively reasonable sense,
so we hope that an attempt to use an “intimidation” rationale to justify the
college’s actions will not enter into this case.

RIC’s Response is Factually Inaccurate

Early in your letter to FIRE you write, “Your letter acknowledges that your
understanding of the facts is based solely upon information provided to you
by Professor Church.” This characterization is highly misleading. As indicated
in our previous letter, we relied heavily on detailed information written by
RIC’s own employees.

It is also incorrect to say that “since there has been no hearing to date,
even at the Step 1 level, the ‘facts’ as perceived by the complainant have yet
to be presented.” Professor Church herself has received a copy of the complaint
filed against her with the Affirmative Action Office, and in an e-mail to Patricia
Giammarco and Lisa Church dated July 27, 2004, college counsel Nicholas Long
discussed the “‘four corners’ of the complaint.” This indicates that Long at
the very least has read the complaint. In addition, Professor Church reports
that Scott Kane told her on May 4 that he had met with the complainant, and
that Pat Giammarco told her on July 13 that she had met with the complainant
as well. Professor Church also has knowledge that the other three people named
in the complaint have already had their hearings and have given testimony and
witnesses’ statements. RIC is clearly aware of the facts in this case.

The point, however, is that even if the facts as presented in the complaint
are considered in the most favorable light for the complainant, no possible
disciplinary issue exists; thus Professor Church should not be subject to any
hearings at all. In the July 27 e-mail cited above, Long explicitly compares
this situation with a “motion to dismiss for failure to state a claim” in court.

Allowing the “investigation” of claims that implicate clearly protected speech
destroys the atmosphere of open debate and forthrightness even if the eventual
outcome of such investigation is a ruling that the speaker is “innocent.” Long,
in his July 27 e-mail, implies that RIC’s policy allows for precisely this kind
of proceeding when he says that “the College [is] well served by following a
process that allows a complainant to ‘tell their story.’” RIC’s statements to
the press also indicate that proceedings can take place even when discipline
is not an option. Yet RIC itself acknowledges another way for a complainant
to tell his or her story—by filling out the complaint submission form. In this
case, the complainant “told her story” on that form, and she did not state any
ground upon which Professor Church, or anyone else involved, could constitutionally
be punished. RIC has failed to produce any evidence that such a ground even
exists.

Professor Church Did Not Engage in Censorship—She Refused
to Censor Constitutionally Protected Expression

We were very interested to learn your interpretation of the nature of the charge
against Professor Church; that “in her capacity as an administrator of the College’s
cooperative preschool program, [she] failed to respond appropriately to a complaint
about one student/mother brought by another student/mother, by inter alia, seeking
to censor a proposed discussion on the subject of racism.” This comes as news
both to FIRE and to Professor Church. The complaint against Professor Church
makes no such claim. In fact, the clearest statement from RIC of the offense
with which she was accused is from a three-word July 28 e-mail from Giammarco
simply reading, “Hostile environment racism.” FIRE also wrote to you on August
2 pointing out that Professor Church had not been charged by her accuser with
anything that would be punishable. However, we received no response from you
until after we took the case public, despite our request to you to correct any
misunderstanding of the facts and our explicit desire to resolve this dispute
discreetly if possible. Considered together, RIC’s actions indicate a lack of
good faith on the part of the college in addressing this situation. No system
can be considered just if the accused is unaware of the charges against him
or her.

It is ironic, and frankly unbelievable, that RIC now sees fit to charge Professor
Church with censorship when the very reason for the complaint against her is
that she would not take action to censor or punish the mothers who were offending
the complainant in the first place. Professor Church did not seek to “censor”
any discussion of racism. The complaining mother wanted to discuss the incident
at a school meeting. Professor Church refused, as the conversation had literally
nothing to do with the school besides taking place in the school building. The
conversation was not about school issues, and involved no one but the three
participants. Regardless, the offended mother eventually was able to bring up
her concerns about racism in a school meeting, and the staff of the school voluntarily
attended a “sensitivity training” session given by RIC administrator Aaron Bruce
as a result of the offended mother’s concerns.

RIC’s Investigation is Disciplinary, Not Mere “Fact-finding”

Your statement that Professor Church “in theory…could be subject to discipline
if it were established…that she willfully engaged in a deliberate act of illegal
discrimination,” but that “discipline is not the focus of the complaint and
discipline is not generally the focus of the Complaint Resolution Procedure”
is hard to reconcile with both the facts and with RIC’s own policies. Indeed,
while the hearing procedure states that it is “available to address any concerns
of members of the College community,” it also states that when the hearing process
is used, “[d]isciplinary action may range from oral reprimand to termination
of employment of [sic] expulsion from the College….” Furthermore, the
mere fact that you concede that disciplinary sanctions are possible makes it
very clear that these are judicial proceedings, not some voluntary, educational
exercise.

Further, the complaint against Professor Church makes clear that the mother
seeks that Professor Church be disciplined in some way. Indeed, the complaint
was turned in on RIC’s “Affirmative Action – Discrimination Complaint Form,”
which specifically asks what “corrective action” the complaining person
would like to see taken, and asks the complaining person who he or she feels
is responsible for the discriminatory action. Lisa Church is among the four
people named as responsible for the “discrimination,” and the complainant specifically
states that she wishes action to be taken against Professor Church. Despite
the assurance to the contrary in your letter, and despite Jane Fusco’s statements
to the Providence Journal for its article on this matter dated August 27, the
evidence indicates that discipline is the focus of the complaint filed
in this instance.

In addition, your assurance to us that Professor Church “faces no campus discipline
because of any exercise of her First Amendment rights” merely assures us of
a fact that was never in dispute. Nobody has accused Professor Church of making
any “offensive” comments. If that was her offense, then punishing her certainly
would conflict with her First Amendment rights. Instead, RIC has taken this
one step further—it is holding formal disciplinary hearings because Professor
Church refused to do what the law prohibits her from doing. For Professor Church,
it is not First Amendment rights at stake—it is basic justice and fairness.
No person, anywhere, at any time, should be investigated or put on trial for
obeying the law.

You also refer in your letter to the “exchange of e-mails discussing hypothetical
situations” concerning RIC’s policies on harassment and intimidation, which
you claim caused “some misunderstandings and confusion.” On the contrary, college
counsel Nicholas Long did a largely admirable job of refuting Patricia Giammarco’s
interpretation of RIC’s policies and explaining why and how the First Amendment’s
guarantees of freedom of expression apply to RIC. The situations discussed were
hardly “hypothetical,” as this entire case turns on whether Professor Church
could or should have done anything about the offending mothers’ constitutionally
protected expression of opinion. If she had done anything to those mothers that
would have constituted punishment of them for their expression, Professor Church
would have been violating their First Amendment rights.

Conclusion

We appreciate this opportunity to discuss this case with you, and would be
happy to continue the discussion as necessary. RIC must understand, however,
that it is grossly off-track in its handling of this case thus far. FIRE therefore
repeats its urgent request that RIC cease its current proceedings against Professor
Church.

Sincerely,
David French
President

cc:

Dan King, Vice President for Academic Affairs, Rhode Island College

Gary Penfield, Vice President for Student Affairs, Rhode Island College

Scott D. Kane, Associate Dean for Student Life, Rhode Island College

Patricia Giammarco, Director of Affirmative Action, Rhode Island College

Nicholas T. Long, General Counsel, Rhode Island College

Robert G. Tetreault, Director of Human Resources, Rhode Island College

Jason Blank, President, RIC/AFT Local 1819

Professor Lisa Church

Encl.


[1] Texas
v. Johnson,
proceeds to cite opinion after opinion to support this premise:
“See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U.S., at 55-56; City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984);

Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Carey
v. Brown, 447 U.S. 455, 462-463 (1980);
FCC v. Pacifica Foundation, 438
U.S., at 745-746;
Young v. American Mini Theatres, Inc., 427 U.S. 50,
63-65, 67-68 (1976)
(plurality opinion); Buckley v. Valeo, 424 U.S. 1,
16-17 (1976);
Grayned v. Rockford, 408 U.S. 104, 115 (1972); Police
Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972);
Bachellar v. Maryland,
397 U.S. 564, 567 (1970);
O’Brien, 391 U.S., at 382; Brown v.
Louisiana, 383 U.S., at 142-143;
Stromberg v. California, 283 U.S., at
368-369.
” FIRE would be happy to provide you with dozens of additional citations
supporting this premise.