Southwestern College President Defends Unconstitutional 'Free Speech Patio' and Contradicts Himself
November 20, 2009
by Adam Kissel
Southwestern College (SWC of Chula Vista, CA) President Raj Chopra defends the school's utterly indefensible "free speech patio" in a one-sided interview published today in The San Diego Union-Tribune. He says that SWC's free speech zone
is in line with state policy. It's there so it doesn't disturb class. I am going to establish a task force, which will look at this existing policy and see where changes need to be made.No state policy, however, calls for SWC's unreasonable restrictions on campus expression, which relegate free speech on campus to a single patio. As FIRE wrote in our letter to Chopra on November 3:
SWC is legally obligated to uphold the First Amendment rights of its students and faculty members. The only possible defense of SWC's policy is that it is a reasonable time, place, and manner restriction as allowed by cases like Ward v. Rock Against Racism, 491 U.S. 781 (1989). There is nothing reasonable, however, about transforming the vast majority of the university's property-indeed, public property-into a censorship area. Federal case law regarding freedom of expression simply does not support the transformation of public institutions of higher education into places where constitutional protections are the exception rather than the rule. Time and again, courts have determined that to be considered legal, all time, place, and manner restrictions must be narrowly tailored to serve substantial governmental interests. The generalized concern for order that underlies the establishment of "free speech zone" policies is neither specific nor substantial enough to justify such restrictions.
Indeed, it is both ludicrous and false to say that the only place on campus that "doesn't disturb class"—not to mention the times when class is not in session, and regardless of the manner and volume of what is being said—and not to mention silent protests—is a single patio out of 156 acres. Here's a campus map.
If you don't believe FIRE, believe David Blair-Loy, Legal Director of the ACLU of San Diego & Imperial Counties. Blair-Loy wrote Chopra similarly on November 9 to explain that SWC's policy is
unlawful to the extent it designates virtually the entire campus as a non-public forum. A peaceful assembly is not basically incompatible with the normal activities of the campus. While the college might properly prohibit actual interference with classroom instruction, obstruction of free passage, or seriously disruptive behavior, it cannot categorically prohibit peaceful speech and assembly on virtually all of the campus.Not only that, Blair-Loy adds, the policy violates state law and the California Constitution. In particular,
In light of the state and federal constitutions, a court would not find it "reasonable" to declare that the entirety of a 156-acre campus, except for one "free speech area" limited to a single patio, is a "non-public forum," especially for faculty, students, and staff.
Besides, in almost the same breath in his interview, Chopra admits that a new task force will "see where changes need to be made." President Chopra, if the policy is already "in line with state policy," please explain why this task force might "need" to make changes. We know why; why can't you admit it?
In the interview, Chopra also suggests that it was wrong that "a faculty member ... went on the microphone and said they should march with the students and incited them." Even if a faculty member did encourage students to leave the free speech zone—thus exercising their constitutional rights—this is nowhere near illegal incitement. Moreover, such an exercise of constitutional rights comes nowhere near justifying SWC's action to put four faculty members on administrative leave and ban them from the campus under the state's Penal Code.
SWC's free speech zone policy must be lifted immediately, and the declaration of SWC as a non-public forum must be lifted immediately, in order to prevent ongoing substantial harm to every student and faculty member at SWC.