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Rhode Island College to Try Professor for Refusing to Punish Protected Speech
PROVIDENCE, R.I., August 24, 2004—Rhode Island College (RIC), a public college in Providence, is planning a hearing this week to determine whether a professor violated college policies banning "hostile environment racism" and "intimidation" for refusing to punish speech protected by the First Amendment.
Professor Lisa B. Church, who was a coordinator for RIC's cooperative preschool program, was not even present when two adult participants in the program allegedly made comments that another adult participant considered racially "offensive." Professor Church refused to punish the offending participants based on a third-person report of constitutionally protected speech, or to make the private altercation into a school-wide issue. Yet due to a complaint filed with RIC by the offended person, Church faces formal hearings for her decision.
"RIC is actually trying a professor for following the First Amendment," remarked David French, president of the Foundation for Individual Rights in Education (FIRE), which wrote to RIC on behalf of Professor Church. "If Professor Church had punished this person for making 'offensive' comments, she would have violated that person's right to free speech. Professor Church is on trial for the offense of obeying the law." Read FIRE's letter to RIC here [152 KB PDF].
The planned hearing stems from an incident on February 19, 2004, in which three mothers of students enrolled in RIC's preschool engaged in a heated conversation about welfare and race. The argument ended abruptly when one mother took offense to statements made by the two other mothers that allegedly expressed negative opinions of interracial relationships and the belief that certain minority groups' rights were valued over the rights of whites. The offended mother angrily left the preschool and reportedly ignored attempts at apologies. Professor Church did not witness the conversation.
On February 27, the offended woman brought the incident to Professor Church's attention, requesting that the matter be discussed at a school meeting. Since the issue involved a disagreement between private individuals, Professor Church instead suggested mediation among the parties and a sensitivity training session for the staff. The offended woman insisted that Professor Church take disciplinary action against the other mothers involved—action that, if taken by an employee of a public college such as Professor Church, would likely have violated the First Amendment's guarantee of free speech. When Professor Church declined, the offended woman accused her of discriminatory conduct. On April 30, Associate Dean for Student Life Scott Kane informed Professor Church that a complaint had been filed with the RIC Affirmative Action Office alleging discrimination and intimidation by Professor Church, the two other mothers involved in the initial conversation, and a teacher at the preschool.
Associate Dean Kane told Professor Church that she was accused of violating RIC's Policy on Equal Opportunity/Affirmative Action, which states that the college "recognizes a higher order responsibility to create, promote and ensure a positive climate where individuals may learn, teach and work free from discrimination." Professor Church objected, maintaining that to apply this policy in her situation would be unconstitutional—but to no avail.
Professor Church sought further clarification of RIC's policies from Patricia Giammarco, RIC's director of affirmative action, in a meeting and a series of e-mails. Unfortunately, Giammarco's understanding of the law was no better. In a July 19 e-mail, Giammarco wrote, "The College has a zero tolerance policy for any kind of discrimination….[O]n the college campus, certain types of remarks will not be tolerated, no matter what the intent." She also implied that RIC may ignore constitutional requirements by repeatedly emphasizing that RIC's hearings were "not a court of law."
"It's very disturbing that RIC's director of affirmative action believes that her institution's rules are above the law," said Greg Lukianoff, FIRE's director of legal and public advocacy. "While RIC is free to prohibit true discrimination, it is not free to enforce a policy that violates the First Amendment by punishing either 'offensive' speech or the failure to censor that speech."
Indeed, RIC's own general counsel, Nicholas T. Long, echoed this sentiment in a July 21 e-mail sent to both Giammarco and Professor Church. Responding to Giammarco's analysis, Long wrote, "College policies relating to discrimination do reflect legal standards and do not purport to set a standard that is different from the law." He also said that "[g]enerally speaking the expression of mere words does not constitute 'discrimination'….[M]ere expression of racist views or sexist views is rarely going to be actionable, however offensive it might be."
However, On July 27, in a strange reversal, Long wrote in an e-mail that a hearing was justified because, "[t]he 'four corners' of the complaint make allegations that are quite different from the types of circumstances that we were discussing last week." Yet Long's e-mails make it clear that he was indeed addressing the issues in the complaint as related to Professor Church; these issues did not change in the five days between Mr. Long's July 22 and July 27 e-mails.
FIRE wrote to RIC President John Nazarian on August 2, reminding him that an alleged failure to punish constitutionally protected expression is not an appropriate subject for investigation and trial. While RIC did not immediately respond to FIRE's letter, the college did delay the formal hearing, originally set for August 3, until this week.
"RIC must understand that a formal disciplinary proceeding has a tremendous chilling effect on free speech. If RIC decides that any allegation, no matter how specious, merits a full investigation and hearing, then students and faculty will either keep controversial opinions to themselves or they will silence the expression of such opinions rather than go through an ordeal like that endured by Professor Church," concluded FIRE's French.
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 at RIC and on campuses across America can be viewed at www.thefire.org.
Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; email@example.com
David French, President, FIRE: 215-717-3473; firstname.lastname@example.org
John Nazarian, President, Rhode Island College: 401-456-8101; email@example.com
Scott Kane, Associate Dean for Student Life, Rhode Island College: 401-456-8061; firstname.lastname@example.org
Patricia Giammarco, Director of Affirmative Action, Rhode Island College: 401-456-8218; email@example.com
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