Back in early December, I wrote about a federal lawsuit brought by the Rhode Island American Civil Liberties Union (RI ACLU) against Rhode Island College (RIC) alleging a violation of the First Amendment rights of the Women’s Studies Organization (WSO), a student group at RIC. The suit claims that RIC removed signs communicating support for reproductive rights placed on campus by the WSO, while other student groups were allowed to post signs freely. The suit asks that both the specific removal and RIC’s sign policy in general be declared unconstitutional.
The trial has started—and it’s shaping up to be a wild one. The Providence Journal reports today that RIC has moved to dismiss the WSO’s claims by arguing that it is “not a government entity,” and therefore not required to uphold First Amendment protections on campus. Specifically, RIC argues that it is a subunit of the Rhode Island Board of Governors for Higher Education, a “public corporation,” and that “since an independent corporation is regarded as ‘private’ for [constitutional] purposes even where the entity is a public creation,” RIC is not bound by the United States Constitution.
In somewhat more straightforward terms: RIC is claiming to be a creation not of the state of Rhode Island, but of the Rhode Island Board of Governors for Higher Education. Since the Board of Governors is a public corporation, RIC claims that they are also an independent public corporation. Thus, RIC argues, they are not the government, even though they were created by a public corporation created by the government. Because they are not the government, they do not need to abide by the government’s rules: namely, the Constitution. Therefore, RIC concludes, the RI ACLU’s suit is without merit.
Needless to say, this is an incredible argument; if accepted, students and faculty at Rhode Island’s public colleges will be left without constitutional protection. Steven Brown, Executive Director of the RI ACLU, expressed his concern, telling the Providence Journal: “Rhode Island College’s position that its campus is a Constitution-free zone is shocking and preposterous, and will no doubt come as a surprise to the thousands of students and faculty members who thought they were attending or working at a public institution…We are confident that the court will summarily reject this extraordinary position.”
We here at FIRE can’t imagine the federal district court taking RIC’s argument seriously. Without delving too heavily into the convoluted intersection of constitutional principle and corporation law, we think it should be fairly obvious that the degrees of separation that exist between RIC and the State of Rhode Island—which RIC’s lawyers claim relieves them of constitutional responsibility—are slim at best and certainly not intended to render public institutions private for purposes of constitutionally guaranteed civil liberties. Both the Board of Governors for Higher Education’s policies and their enabling statutes make clear that the universities under its control are to be thought of as “public institutions.” Indeed, the Board’s Policies of Corporate Control state that “[t]he Board is responsible for governing the three public institutions of higher education: the University of Rhode Island, Rhode Island College and the Community College of Rhode Island.” (Emphasis added.)
RIC’s counsel is clearly relying here on a line of legal reasoning most recently affirmed by Rollins v. Board of Governors for Higher Educ., 761 F. Supp. 930 (D.R.I. 1990), a case in which a federal district court held that the Board of Governors was “not an arm of the state for sovereign immunity purposes.” (Emphasis added.) However, the WSO’s case concerns First Amendment rights, not Eleventh Amendment sovereign immunity. (The Eleventh Amendment grants immunity to states from being sued by citizens of another state, without the defendant state’s consent.) While the “independent status” of RIC may have been upheld by this line of cases in relation to questions of sovereign immunity, it would be a tremendous leap for the district court to infer here that cases decided with regards to Eleventh Amendment questions were instantly applicable and controlling to First Amendment questions as well.
Of course, FIRE will continue to watch the developments in the case.