FIRE and ACLU Hammer California’s Southwestern College for ‘Free Speech Patio,’ Unconstitutional Policies
May 13, 2010
by Adam Kissel
Southwestern College (SWC) in California limits free expression to a single "free speech patio" in a badly named "Freedom of Expression" policy dating back to 2007. To get a sense of the size of this tiny free speech zone, take a look at this campus map. FIRE and the American Civil Liberties Union of San Diego & Imperial Counties (ACLU-SD) challenged the policy more than six months ago, but the college has failed to produce a new policy that is constitutional. Meanwhile, the "free speech patio" policy remains in force, violating the First Amendment every day, which FIRE pointed out in a letter sent to SWC Superintendent-President Raj K. Chopra yesterday.
This case got its start on October 22, 2009, when a group of students and faculty members assembled in SWC's "free speech zone" to protest various actions taken by the SWC administration. According to a professor who was in attendance, one of the students said, "Let's go where they can hear us." When some of the protesters reached the courtyard where Chopra's office is located, they were met by police officers who would not let them pass. Three faculty members who were with the group for different periods of time, and a fourth who was merely in the area, were placed on paid leave and banned from campus that night via letters hand-delivered to their off-campus homes. The faculty members also were banned "from using any District facilities, phone or email."
FIRE wrote Chopra on November 3, 2009, explaining why both the "Freedom of Expression" policy and its application to the protesters were unconstitutional. In a November 25 response, SWC attorney Jonathan A. Pearl promised to "carefully consider the issues" raised by FIRE.
SWC convened an administrator-faculty-student committee to draft a new policy in January 2010. The committee announced a new proposed policy via an April 28, 2010 e-mail to all full-time and part-time SWC faculty from Angelina E. Stuart, Academic Senate President-Elect. Comment on the policy is open until Saturday, May 15.
In response, both FIRE and ACLU-SD have sent letters protesting the constitutional problems in the new policy. ACLU-SD's letter of May 7 identified several of these problems. Our letter of May 12 points out that the new policy not only threatens First Amendment liberties, but also betrays a public college's function as a true marketplace of ideas. Since SWC seems to have at least a little concern about its public reputation, both the ACLU and FIRE have sent out press releases today to get the word out about how serious it is that the college is continuing to violate the First Amendment rights of its own students and faculty members.
We also notified the administrators and board members in charge of all of this that they are on very thin ice:
The deadline for input on the new policy is this Saturday, May 15. If you would like to tell SWC what you think, you can contact President Chopra at 619-482-6301 or firstname.lastname@example.org.
Leaving Policy No. 5550 on the books, or permitting the flawed, unconstitutional replacement policy to become active policy, opens SWC to potential First Amendment lawsuits. Such lawsuits would further embarrass the college and would be potentially expensive. Furthermore, the recipients of this letter, FIRE's earlier letter, and the ACLU's May 7 letter are all on notice that these policies are unconstitutional. This notice lessens the "qualified immunity" protection often afforded to public officials acting pursuant to their jobs. In other words, you and all persons who have the power to keep these unconstitutional policies off the books are in danger of losing your qualified immunity if you are sued, opening you to personal liability in lawsuits where it can be shown that you knew (or a reasonable official in your position would have known) that clearly established constitutional rights were violated. While FIRE does not litigate, we note that the ACLU letter states that "the ACLU remains ready and able to protect freedom of speech through litigation whenever necessary."