By Lisa Zycherman at JD Supra
Constitution Day 2013 was a pretty bad day for the Constitution on our public university campuses. That was the day that Robert Van Tuinen of Modesto Junior College in California was prevented from passing out copies of the Constitution outside of his school’s tiny “free speech zone.” On that same day, near Los Angeles, Citrus College student Vinny Sinapi-Riddle was threatened with removal from campus for the “offense” of collecting signatures for a petition against National Security Agency (“NSA”) domestic surveillance outside his college’s tiny free speech area.
The absurdity of these constitutional violations is obvious. But, due to the continuing threat of campus speech codes—rules that restrict what students may say and where they may say it—offenses like these are more frequent than we want to believe. The only difference between these two cases and the many others is that Robert and Vinny decided to challenge their schools in court.
Over the past year, the Foundation for Individual Rights in Education (FIRE) launched a nationwide litigation project to finally end speech codes on public campuses. Davis Wright Tremaine is honored to be asked to participate in this important work.
DWT attorneys Robert Corn-Revere, Ronnie London, and Lisa Zycherman, working together with local counsel, began this project in the fall of 2013, with a lawsuit at Modesto Junior College. Following that astonishing example, we actually found another case, at the University of Hawaii at Hilo, in which two students—Merritt Burch and Anthony Vizzone—were also told that they could not approach students to hand out Constitutions. The Modesto Junior College and University of Hawaii at Hilo suits both settled after each school adopted new policies protecting student speech rights and paid $50,000 apiece in damages and attorney’s fees.
On July 1, 2014, the Stand Up for Speech Project filed four additional suits to remedy systemic constitutional violations and generate greater awareness of the importance of protecting the First Amendment rights of students and faculty at our public institutions of higher education. On that day, Vinny and plaintiffs at three other schools filed federal lawsuits asserting their rights. The First Amendment violations alleged in the four suits are blatant:
At Citrus College, Vinny was threatened with being kicked off campus for speaking to another student outside the school’s tiny and ironically-named “free speech zone” about his petition drive protesting activities of the NSA. This happened despite the fact that protections for free speech in the public forum were first articulated by the Supreme Court almost 80 years ago, as well as the fact that Citrus College was already once forced to eliminate a free speech zone, after a lawsuit settlement in 2003. Citrus College has since settled Vinny’s claims after paying $110,000 (to cover damages and attorney’s fees) and adopting new policies that protect student rights.
At Ohio University, Isaac Smith and Students Defending Students, a student due process assistance group for which he serves as associate director, were ordered to stop wearing shirts with a mildly risqué slogan (“We get you off for free”) under a vague school policy prohibiting “demeaning” or “degrading” speech. Officials at the school took this action despite the fact that the Supreme Court held 44 years ago that the First Amendment protects clothing with political slogans—even crude ones—in a case that involved a jacket urging an anatomically improbable act involving the military draft. The University has agreed to settle the case after adopting new university policies that protect student rights to free expression and paying $32,000 in damages and attorney’s fees.
At Chicago State University, the administration is going to great lengths to silence faculty members Phillip Beverly and Robert Bionaz for their blog, the CSU Faculty Voice, which provides critical commentary on mismanagement at the university. Among other tactics, the school has adopted a broad and poorly defined “Cyberbullying Policy” as a tool of censorship. These efforts fly in the face of principles reaffirmed by the Supreme Court last year—again unanimously—that speech by teachers intending to reveal corruption and the misuse of public funds “lies at the heart of the First Amendment.” The University’s motion to dismiss the litigation was recently denied by a federal judge and the court is now considering the professors’ motion for an injunction to prevent the University from enforcing its unconstitutional speech codes.
At Iowa State University, the school manipulated its trademark policy to deny approval for certain t-shirt designs proposed by the ISU Chapter of the National Organization for the Reform of Marijuana Laws (“NORML”). ISU hid behind the pretexual claim that the shirts somehow promoted illegal drugs or suggested that the message was endorsed by the university, when it is abundantly clear that the shirts merely state NORML ISU’s position on the political issue of drug policy reform. Students Paul Gerlich and Erin Furleigh are challenging this clear example of political censorship. In January, a federal judge denied ISU’s motion to dismiss the case, finding that ISU’s “creative argument” that the students’ case was really about trademark protection issues rather than a constitutional violation missed the mark.
Most recently, at Western Michigan University, the school denied the Kalamazoo Peace Center permission to use university space for a keynote address by activist Boots Riley at the group’s annual Peace Week commemoration citing “public safety.” When presented with evidence that Riley had appeared on other college campuses without incident, WMU notified KPC that it could hold the event on campus—but only after paying $62 per hour for private security. KPC and its co-directors Jessica Clark and Nola Wiersma filed suit alleging that the university should not be permitted to impose a tax on controversial speech. The case is still pending.
The Stand Up For Speech cases are just examples of the type of censorship that takes place on American college campuses every day. The ugly truth is that American college campuses are now places where wearing t-shirts, collecting petition signatures, blogging, or distributing our nation’s founding documents can get you in trouble. The Stand Up For Speech project will continue to bring new cases until we reinforce the message, first articulated by the Supreme Court more than four decades ago, that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”