FIRE Letter to University of Idaho President Duane Nellis
May 5, 2010
May 5, 2010
M. Duane Nellis, President
University of Idaho
Office of the President
Administration Building, Room 105
Moscow, Idaho 83844-3151
Sent via U.S. Mail and Facsimile (208-885-6558)
Dear President Nellis:
As you can see from the list of our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, free speech, legal equality, due process, the right of conscience, and academic freedom on America's college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.
FIRE is gravely concerned about the threat to freedom of expression and due process presented by University of Idaho's (UI's) charges of "discrimination" and "harassment," as well as other charges, due to two incidents in which a UI student vigorously expressed his opinions during campus events. Charging a student for making "statements denigrating an ethnic group" makes a mockery of UI's legal and moral obligations as a public institution of higher learning. Furthermore, shouting outdoors during a public parade is neither harassing behavior nor disruption of the parade.
This is our understanding of the facts. Please inform us if you believe we are in error. On or about March 30, 2010, between songs at a musical performance in the food court at Idaho Commons as part of a celebration for César Chávez Day, UI student Alexander Rowson stood at a microphone and, according to him, made a political statement about "how illegal immigration destroyed my home state of California." The entire incident was over after about 30 seconds, and the performance continued. In an unrelated incident on April 22, 2010, during an outdoor anti-sexual assault "Take Back the Night" parade, Rowson stood outside of his dormitory among the Living Learning Community residences at street level and shouted comments at the parade, such as "liberalism is destroying America."
In response to the first incident, Rowson received a formal notice on April 5 from Laura Hutchinson, Judicial Officer and Director of Campus Life and Student Conduct, charging him with "violat[ing] the rights of the university community" because he allegedly "interrupted a sponsored cultural event and made statements denigrating an ethnic group," and with violating the university's "discrimination policy." The university's discrimination policy, as stated in the Student Code of Conduct, identifies violations as conduct involving "[p]ractices or regulations that discriminate" against a protected group, such as preventing equal access to a dining hall or classroom.
In response to the second incident, Rowson received a similar letter from Hutchinson on April 23, charging him with "intimidation, specifically by intentionally walking into a participant in an aggressive manner"; "harass[ment] of participants at a University of Idaho sanctioned event by repeatedly shouting hostile and offensive statements"; interfering with an event; and discrimination. Rowson fully denies the allegation of "walking into" someone. Although he met with two deans about the second incident, he has never been provided with the identity of his accuser.
The range of penalties for infractions of the Student Code of Conduct includes expulsion. Rowson has not yet been granted a formal hearing with regard to either incident.
That the First Amendment's protections fully extend to public colleges like UI has long been settled law. See, e.g., Healy v. James, 408 U.S. 169, 180 (1972) (citation omitted) ("[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools'"); Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) ("With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities").
The charges against Rowson violate his First Amendment right to free expression in several ways.
Rowson's Speech Is Not Harassment.
Rowson's language may not be punished as "harassment," as alleged in the parade incident. The misinterpretation of federal harassment law by colleges and universities had become so rampant that on July 28, 2003, Assistant Secretary Gerald A. Reynolds of the U.S. Department of Education's Office for Civil Rights (OCR) issued an open letter to all college and university presidents in the United States that clarified the relationship between harassment law, federal regulations, and the First Amendment. Secretary Reynolds wrote:
[I]n addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR ... Some colleges and universities have interpreted OCR's prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. [Emphases added.]
Specifically, the Supreme Court has defined student-on-student harassment as conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) (emphasis added). By definition, this includes only extreme and usually repetitive behavior—behavior so serious that it would prevent a reasonable person from receiving his or her education. For example, in Davis, the conduct found by the Court to be actionable harassment was a months-long pattern of conduct including repeated attempts to touch the victim's breasts and genitals and repeated sexually explicit comments directed at and about the victim.
Harassment, properly understood and as defined by the Supreme Court, refers to conduct that is (1) unwelcome; (2) discriminatory (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "so severe, pervasive, and objectively offensive, and...[that] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Id. at 652.
Put simply, to be legally punishable as harassment, a student must be far more than simply rude or offensive. Rather, he or she must be actively engaged in a specific type of discrimination to such a degree that the student effectively bars equal access to the university's resources, as defined by law. Rowson's speech denied no one equal access to the parade and falls far short of the Davis standard in several respects.
Rowson's Speech Is Not Discrimination.
Nor may Rowson's language in either incident be punished as "discrimination." Expression by a student, even if it includes speech that is considered "hostile" or "offensive" to its hearers, may not be prohibited or punished as discrimination, and doing so trivializes the experiences of those who have suffered from true discrimination. Mere expression of personal opinions without any harassment or the discriminatory exercise of power cannot be said to meaningfully discriminate against anyone, and certainly not according to UI's own discrimination policy. Moreover, expressing the belief that "illegal immigration destroyed my home state of California" or that "liberalism is destroying America" is core political speech about matters of public concern-speech whose content is particularly important to the marketplace of ideas and entirely protected by the First Amendment.
The principle of freedom of speech does not exist to protect only non-controversial speech; indeed, it exists precisely to protect speech that some members of a community may find controversial or offensive. The right to free speech includes the right to say things that are deeply offensive to many people, and the Supreme Court has explicitly held, in rulings spanning decades, that speech cannot be restricted simply because it offends people. In Street v. New York, 394 U.S. 576, 592 (1969), the Court held that "[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.'" In Terminiello v. Chicago, 337 U.S. 1, 4 (1949), the Court held that "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." In Texas v. Johnson, 491 U.S. 397, 414 (1989), the Court explained the rationale behind these decisions well, saying that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Under these standards, there can be no question that Rowson's language may not be punished as "discrimination."
Shouting at a Parade Is Not Disruption or Interference.
It is extremely unlikely that one person shouting during a parade would cause disruption to the parade. Is the university prepared to argue that the parade dissolved, stopped for an appreciable length of time, or in some other way did not continue? It is not at all uncommon for onlookers to shout at people passing by in a parade; these people virtually never disrupt the parade. If UI intends to prosecute Rowson for "disruption" or "interference" because of the content of his speech or his alleged shouting during the parade, again UI is violating his First Amendment right to freedom of speech.
Due Process Concerns.
The fact that UI has included "harass[ment]" and "discrimination" charges of, for instance, making "statements denigrating an ethnic group" and "shouting hostile and offensive statements" makes clear that UI is significantly concerned with the protected content of Rowson's speech; but for the content of the speech, it is unlikely that Rowson would be facing such an array of inapt charges.
Furthermore, regarding the allegations of "intimidation" and "physical abuse"—involving alleged conduct that Rowson has denied—we urge you to review the legal definitions of such conduct and not to use such charges as pretexts for punishing Rowson's protected speech. In addition, we note that Rowson deserves at least the due process to which he is entitled under the Fifth and Fourteenth Amendments to the U.S. Constitution and the University of Idaho's policies. These rights normally include, among other things, the right to know the identity of one's accuser, to present witnesses, and to confront one's accuser. Rowson still does not know the identity of his accuser and cannot adequately prepare his defense without knowing who his accuser is. Nor does he know specifically what it means to have "intentionally walk[ed] into a participant in an aggressive manner"—an allegation that seems hard to understand and which, in context, seems like a pretext for punishing Rowson's speech. Finally, UI must remember that due process requires that similar cases be treated similarly regardless of UI's feelings about the offensiveness of Rowson's speech.
We urge UI to show the courage to take the necessary steps to correct its errors in prosecuting Rowson for his protected speech. While we hope this situation can be resolved amicably and swiftly, we are committed to using all of our resources to see this situation through to a just and moral conclusion.
With this letter we enclose a signed FERPA waiver from Alexander Rowson, permitting you to fully discuss his case with FIRE.
Please respond by May 19. We look forward to hearing from you.
Director, Individual Rights Defense Program
Bruce M. Pitman, Vice Provost for Student Affairs and Dean of Students
Laura Hutchinson, Judicial Officer and Director of Campus Life and Student Conduct