Rensselaer Polytechnic Institute, a private institution in upstate New York, recently earned a spot on FIRE’s list of the ten worst colleges for free speech, due in large part to its ongoing suppression of the student-led “Save the Union” campaign. Those students, critical of what they see as RPI administrators’ attempts to wrest control of the century-old, student-run Rensselaer Union, have seen administrators repeatedly deny permission to hold peaceful demonstrations; have repeatedly videotaped employees tearing down flyers; have recorded security officers ordering them not to post flyers; and have been subjected to investigations and unfounded charges of violating the student code of conduct.
And now, they’ve earned a fourth letter from FIRE. On Saturday, Feb. 24, two students stood on a public sidewalk adjacent to the Houston Field House, where a hockey game was taking place inside. The pair were there to pass out buttons and literature in support of the “Renew Rensselaer” campaign, an alumni effort closely related to the student-driven “Save the Union” campaign. Having been often deterred from protesting by RPI’s administration, the students looked at tax maps and determined that the streets and sidewalks outside the venue appear to be publicly owned.
But soon enough, two RPI Public Safety officers approached the students and told them they couldn’t pass out buttons and literature there. When the students explained that the sidewalk was apparently public — and, in any event, they weren’t blocking any foot traffic — the officers told them that RPI had control over the sidewalk during hockey games because of “eminent domain.”
As we explain in the letter, that’s not how “eminent domain” works:
That RPI Public Safety officers directed students to cease distributing literature on a public sidewalk on the basis that RPI had acquired some lawful right to do so, under the guise of “eminent domain,” is as preposterous as it is legally incomprehensible. Eminent domain is the practice of a public body condemning and seizing real property for a public purpose, not a private institution requisitioning public lands for its own purpose. See, e.g., Kelo v. New London, 545 U.S. 469, 496 (2005) (O’Connor, J., dissenting) (describing constitutional limitations on the exercise of eminent domain).
Of course, it’s possible that the students are mistaken and RPI owns the sidewalk outright, or that the officers were mistaken and the Institute has received a permit or some other agreement from the City of Troy. (We’ve asked RPI for a copy of any such permit and issued a Freedom of Information Law request to the City of Troy.)
But if that’s the case, the officers’ still lacked the authority to require students to leave the sidewalk. Although the First Amendment doesn’t restrict private institutions, RPI has promised its students that it will not “impede or obstruct students in the exercise of their fundamental rights as citizens,” that students as students also enjoy freedom of expression on campus, and that the Institute will not use the “denial of access” to its facilities “as a means of censorship or suppression of any lawful activity.” Certainly that includes sidewalks, which courts view as a “quintessential” place of public expression.
As we tell RPI in our letter:
[I]t appears that officers exercised authority they did not possess, for the cynical purpose of exercising authority, while referencing a legal term—“eminent domain”—that sounds authoritative but has no comprehensible relationship to their roles as private security officers. In doing so, they acted to deprive students of access to their intended audience. An institution of higher education, which traffics in the very exchange of ideas and views, should be able to expect more of its police, as should its students.
One of the students stopped by RPI security officers, Michael Gardner, recently discussed the state of free expression at RPI:
Whether RPI was telling students to leave the sidewalk under the guise of of “eminent domain,” the lack of a permit, or outright ownership of the sidewalk, it can’t exile students from sidewalks simply for passing out flyers and buttons.