Modesto Junior College: Open and Persistent Defiance of the Constitution?

November 11, 2015

Modesto Junior College (MJC) in California must really like being in the free speech spotlight. Followers of FIRE will recognize the college’s name, since we helped student Robert Van Tuinen sue MJC for violating his First Amendment rights by restricting him from handing out copies of the Constitution on campus—on Constitution Day. (It was even caught on video.)

MJC settled that lawsuit on February 24, 2014 for $50,000 in damages and attorney’s fees. The school also agreed to abolish its free speech zone—a tiny concrete stage—and reform some of its policies to respect students’ free speech rights. Under normal circumstances, a lawsuit would convince administrators of their obligation to respect the First Amendment. But apparently, “normal” and MJC just don’t go together.

We have recently learned that MJC (through the Yosemite Community College District, of which it is a part) has modified its policies to prohibit the following:

Disruptive behavior, willful disobedience, habitual profanity or vulgarity, or the open and persistent defiance of the authority of, or persistent abuse of, college personnel.

Ahh, the venerable “catch-all,” beloved by capricious autocrats the world over. And the MJC administration certainly takes “capricious autocrats” to new heights of tin-pottery. Can anyone know for certain what this provision covers? This policy tries to group clearly disruptive behavior (which can legally be prohibited) with merely being an annoyance to the college staff. Of course, a college can (and should) prohibit clearly disruptive behavior and harassmentbut this policy goes much too far and is especially concerning when looked at through MJC’s recent history.

MJC was not content to simply stomp on Robert’s constitutional rights; it decided that it would be an excellent, well thought-out idea to retaliate against faculty members Leslie Beggs and W. J. Holly, both of whom publicly supported him. If that wasn’t enough, MJC’s chancellor also published a sniveling op-ed saying, in essence, “we didn’t do it, and they said mean things.” (Oddly, MJC’s chancellor also claimed that “[t]here was never any finding by the (U.S. District Court in Fresno) that the district’s policies violated constitutional free speech principles.” Well, of course not, that’s what happens when you settle a lawsuit.) Given MJC’s history, it is particularly unsettling and disturbing that it is now attempting to prohibit criticism of college personnel. If anyone deserves calling out, it’s MJC’s senior administrative staff.

Aside from MJC’s clearly dubious track record on free speech, the problems with the new policy are myriad. First, since MJC is a public institution, its policies are examined with the same scrutiny that would apply to any governmental actor. According to the Supreme Court of the United States, a policy or regulation must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else it is unconstitutionally vague. The above policy is entirely within the discretion of MJC’s staff, and, as people differ in their tolerance for “defiance” or “abuse,” the applicability will necessarily differ between individual staff members. It is therefore not possible for someone to know in advance what is prohibited.

Second, the policy bans “habitual profanity or vulgarity.” So… pop culture? The Supreme Court addressed a similar issue in a case familiar to any first-year law student. By stating in Cohen v. California, 403 U.S. 15 (1971) that “one man’s vulgarity is another’s lyric,” the Court indicated that even profanity is ordinarily protected. In any event, it is clear that Modesto is overstepping its bounds with this provision.

It is thoroughly improper for MJC to chill students’ expression in this manner. It’s even more maddening that MJC is “willfully disobedien[t]” and “persistent[ly] defian[t]” of the Constitution and the courts. And it takes the cake that the college is attempting to put in place an official policy that will give MJC cover to retaliate with impunity against students and faculty for any “defiance”of college authority.

One thing is for certain, FIRE will not tolerate this “disruptive behavior,” and we are watching.

Schools:  Modesto Junior College

Cases:  Modesto Junior College: Students Barred from Distributing Constitutions on Constitution Day