Yesterday, Rhode Island College’s (RIC’s) lawyers made the shocking argument that a First Amendment challenge to the school’s sign policy should be dismissed because the school was not a state actor and therefore not bound by the Constitution. As I discussed yesterday, this incredible argument relied on a narrow line of reasoning imported from a string of Eleventh Amendment decisions dealing not with First Amendment protections, but rather with whether or not Rhode Island’s public colleges enjoyed sovereign immunity from lawsuits as an “arm of the state.” Had the federal district court hearing the present case accepted this slick gambit, students and faculty at Rhode Island’s public institutions would have been instantly stripped of constitutional protections. Steven Brown, executive director of the Rhode Island American Civil Liberties Union (RI ACLU), the group bringing the lawsuit against RIC, couldn’t have said it better when he called the school’s argument “shocking and preposterous.”
It turns out the Rhode Island Board of Governors of Higher Education completely agreed with Mr. Brown’s assessment.
In a stunning turn of events, the Providence Journal reports this morning that the Rhode Island Board of Governors of Higher Education has ordered the immediate withdrawal of the school’s motion to dismiss. Frank Caprio, chairman of the Board of Governors, told the Providence Journal he was “somewhat surprised” to learn of RIC’s claim that it was not bound by the First Amendment. Caprio—who knows a little something about the law, seeing as how he’s Chief Judge of the Providence Municipal Court—told the paper in no uncertain terms that he rejected the school’s reasoning. “Without judging the merits of the legal argument, that narrow legal definition does not reflect my view, the view of the board or the view of Commissioner Warner. We are a public institution of higher education subject to all the constitutional prohibitions and laws that apply to other public entities,” Caprio said.
The Board did the right thing in telling RIC’s lawyers to quit the shenanigans before they did any further damage to the school’s reputation. It is simply unconscionable to argue that a public school supported by public funds—in this year’s state budget, the Board of Governors, which oversees RIC along with all of Rhode Island’s public colleges and universities, will receive roughly 740 million dollars of state money—is somehow above the Constitution of the United States. As I argued yesterday, it would have been absolutely astounding for the court to accept RIC’s argument, and I highly doubt the court would have seriously considered it. That said, it’s even better to know that the Board of Governors thinks the argument should never have been made at all.
Students and faculty at Rhode Island’s public institutions of higher learning can breathe a little easier today knowing that the Constitution still applies on campus.