DAYTON, Ohio, April 6, 2011—Sinclair Community College has banned a student from distributing literature about abortion, birth control, and breast cancer to her classmates after class. The college also bans all distribution of literature on vast areas of campus. Student Ethel Borel-Donohue, who never disrupted class with her literature, came to the Foundation for Individual Rights in Education (FIRE) for help.
"The right to distribute literature about controversial topics is one of Americans' most hallowed rights," FIRE President Greg Lukianoff said. "If someone's claim to be offended by speech were all it took to overrule the First Amendment, we would all be reduced to silence. Thankfully the Constitution does not recognize a ‘right not to be offended.'"
On a single occasion during National Breast Cancer Awareness Month last October, Sinclair Community College student Ethel Borel-Donohue distributed roughly 15 flyers relating to National Breast Cancer Awareness Month to various students in her Probate Law I course after class. Borel-Donohue is a student in SCC's Paralegal Program. The flyers discuss possible risks of breast cancer related to birth control and abortion.
Borel-Donohue was summoned to the office of Judge Michael Brigner, Paralegal Program Chair, and they met on November 2, according to Borel-Donohue's written account. Brigner reportedly stated that a student had complained to him about being "offended by the material in the brochures." Brigner then told her she "had no right to hand out any materials to students in the classroom." On January 4, 2011, Borel-Donohue asked Brigner to verify the conversation, but he refused to correct her account, which he merely said was "not accurate" in a reply the same day.
On February 22, FIRE sent a letter to SCC President Steven Lee Johnson, making clear that "while SCC instructors may limit the expression of students during class time in the service of SCC's educational mission, such narrowly tailored restrictions for instructional purposes cannot lawfully be extended to restrict all distribution of literature outside of class time." In a 1979 decision striking down The Ohio State University's similarly broad restrictions on literature distribution, a federal district court in Solid Rock Foundation v. Ohio State University fully explained that absent "material disruption" or "substantial disorder," the distribution of literature on campus is student expression protected by the First Amendment, even if students complain about the content of the message distributed.
Ohio Assistant Attorney General and General Counsel Lauren M. Ross replied to FIRE's letter on March 16. Apparently in defense of SCC's unlawful action, Ross invoked a policy at SCC that bans all distribution of literature in "working areas" including "classrooms, laboratories, lecture halls, gymnasiums, libraries, offices, work stations, conference rooms, and corridors leading directly thereto which are an integral part of the work areas." SCC's Student Code of Conduct even more broadly bans "distribution ... of materials on Sinclair owned or controlled property," with the single exception of "recognized student organizations after registering with the appropriate college official."
FIRE wrote Johnson a second letter on March 23, copying Ohio Governor John R. Kasich and Ohio Attorney General Mike DeWine. FIRE asked Johnson to bring SCC's policies into compliance with the First Amendment and to reply by March 30, but SCC has not responded.
"Since the time of Thomas Paine," FIRE Vice President of Programs Adam Kissel said, "it has been inconsistent with basic American conceptions of liberty for the government to enact wholesale restrictions on pamphleteers. Sinclair Community College's attempt to prevent not only Borel-Donohue but all SCC students from peacefully expressing their views teaches students exactly the wrong lesson about individual liberty."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at thefire.org.