Free speech at University of Cincinnati under ‘FIRE’
April 2, 2012
The News Record
CINCINNATI - In the midst of a federal civil rights lawsuit alleging First Amendment violations by the University of Cincinnati, the school received another black eye last week when it was named one of the nation's worst colleges for free speech.
The Foundation for Individual Rights in Education (FIRE) - a nonprofit educational foundation that promotes individual rights and due process at colleges and universities throughout the United States - named UC to its 2012 list of "The 12 Worst Colleges for Free Speech" March 27.
The list - which includes such schools as Harvard University, Yale University, Syracuse University and Michigan State University - was for institutions "severely violating the speech rights of students, faculty members, or both," according to a statement accompanying FIRE's list.
UC was the only Ohio college or university named among the 12 schools and was pinpointed by FIRE based primarily on the university's "Free Speech Area" policy, which FIRE labeled "shockingly restrictive."
"These colleges and universities have deeply violated the principles that are supposed to animate higher education," said Greg Lukianoff, president of FIRE. "Sunlight is one of the best disinfectants, and the public needs to know which schools to watch out for."
The distinction is the latest in what has become a growing issue at UC, which finds itself embroiled as the defendant in a federal civil rights lawsuit filed in February by the UC chapter of Young Americans for Liberty (YAL) with the cooperation of FIRE and Ohio's 1851 Center for Constitutional Law.
The lawsuit was brought against the university after a request was denied for YAL to gather signatures and speak to students throughout campus regarding support of a "right to work" ballot initiative. The group was instead placed in the campus "Free Speech Area" located in the northwest corner of McMicken Commons.
The lawsuit alleges First Amendment violations on the part of UC and asks for an immediate injunction against the university's free speech policy. A temporary compromise was reached in March between UC and YAL, allowing the group to petition throughout most open outdoor spaces on campus without having to reregister with UC's scheduling office, and a hearing regarding the lawsuit is slated for May 30.
Legal action FIRE previously participated in resulted in the elimination of similar free speech areas at West Virginia University, Texas Tech University and the University of North Carolina at Greensboro.
The list isn't the first time, however, UC has been in the crosshairs of FIRE.
The organization criticized the university's free speech policy by naming it "Speech Code of the Month" in December 2007 and also wrote a letter to former UC President Nancy Zimpher in December 2008 regarding the policy, calling it "imperative that Cincinnati immediately revise its illegal and immoral ‘Free Speech Area' policy" and offering guidelines for how UC could revise the regulation.
UC's free speech policy details the procedures and regulations that have incurred the wrath of FIRE.
Policy outlines freedoms
Found on pages 14 and 15 of UC's "Use of Facilities Policy Manual" is the policy that has garnered UC the recent spate of negative attention.
The university's "Free Speech Area" is detailed on page 14 as being "the northwest section of McMicken Commons immediately east of McMicken Hall on the West Campus ... Individuals or groups wanting to use these areas must schedule the activity in the Campus Scheduling Office. Anyone violating this policy might be charged with trespassing. No more than one musical or speaking activity is permitted at the same time."
The area described in the policy constitutes approximately 0.1 percent of UC's 137-acre Main Campus, one of many areas of criticism by FIRE.
Among other points of contention with UC's policy are the specific times and places allowing the use of amplification, such as megaphones; the amount of time required for notification of a demonstration, picket or rally - 10 days; and such activities being confined to the campus Free Speech Area.
The policy also forbids the disruption of classes or administrative functions on campus due to rallies or demonstrations and access to campus buildings for those activities.
Such an occurrence took place in February 2011, when dozens of UC students and faculty, equipped with signs and chanting slogans, marched to the office of UC President Greg Williams to deliver a letter condemning Ohio Senate Bill 5 - the now-defeated bill which proposed collective bargaining reform.
It is the portion of the policy regarding violators being charged with trespassing, however, which has drawn the most heat. In 2007, FIRE called it "truly shameful" in the fact that the policy "threatens students with criminal prosecution merely for exercising their constitutionally protected rights outside of the paltry area it has designated for free speech."
Part of the current lawsuit filed by YAL against UC alleges that if any members of the student group were found "walking around campus gathering signatures, campus security would be alerted."
Multiple attempts by The News Record to contact Daniel Cummins, director of Judicial Affairs at UC, to learn the number of students - if any - who have been disciplined for violating the university's free speech policy were unsuccessful.
A News Record analysis of the UC Police Division daily call logs shows that since September 2011 - the beginning of the 2011-12 academic year - there have been 20 citations for trespassing on UC's Main Campus and one trespass warning given.
UC Police Chief Michael Cureton declined to comment on whether any of those citations by the UCPD were given to individuals for violating the policy, due to the current lawsuit pending against the university.
"This issue of free speech is currently in litigation," Cureton said. "There is likely to be a settlement that moves all parties forward. It would be premature for me to comment until the court has ruled."
UC denies injustice
Despite the recent wave of criticism, the idea that UC is a repressive campus violating the right to free speech is incredulous, said Greg Hand, UC spokesman.
"I would ask anyone to visit this campus on any given day and walk by almost any point in the campus, and they're going to see free speech activities going on," Hand said. "Every single bulletin board, any space that holds a folding table both outside and inside Tangeman [University Center], you have free speech activities going on."
Hand even cites personal experiences at UC as examples of the university being both open and committed to open dialogue on campus.
"I've been witness to semi truck-sized posters of aborted fetuses in the middle of McMicken Commons, seen Michael Moore speaking and been asked for signatures on petitions from every point of the political spectrum," Hand said.
While Hand was unsure when the policy for a "free speech zone" on UC's campus was instituted - it was last updated in August 2008 - the idea for it originated in the 1960s, he said.
"At the time, there actually was a lot of control on this and other college campuses as far as who was allowed to speak," Hand said. "The free speech zone was a way to open up speech beyond the immediate campus community."
Hand references a staff editorial in the Nov. 18, 1965 edition of The News Record - suggesting the need for a ‘free speech alley' - as an example of how, at one time, UC students wanted an area similar to the one on McMicken Commons that is now in dispute.
The editorial detailed how "with the Free Speech Alley, everyone would have the opportunity to express his opinions and would not have to fear ostracism or unnecessary criticism. This idea has been very successful on many other college campuses, some of them with smaller populations than UC."
The purpose behind UC's current free speech zone on McMicken Commons is to give those individuals or groups that don't meet certain criteria, such as sponsorship by a university organization, an area for their voice to still be heard, Hand said.
"If you're not part of the community or meet criteria, there's still a place you can go," Hand said.
Roughly 90 percent of those who utilize the Free Speech Zone are religious speakers, such as the traveling preacher Brother Micah, Hand said. Hand also receives polarized complaints about the area, he said.
"You always hear the same two things: We don't like using it, because it's away from the center of campus, and how can the university allow this offensive speech to take place right in the middle of campus?" Hand said. "That kind of indicates that whoever picked that space found a happy medium."
The mission of the university, however, isn't to be an open public forum for everything, Hand said.
"I don't think there is a lot of disagreement with the concept that [UC] is an educational institution," Hand said. "It doesn't exist to provide a public forum. Our job is to provide education, and we have the responsibility that the educational process is not disrupted."
Even with that responsibility, students are provided opportunity for freedom of expression, Hand said.
"We want people to have access to a free exchange of ideas," Hand said.
Students, faculty respond
While the UC administration might view the university's policy as one supporting and encouraging free speech, some student groups and faculty feel differently.
"[The policy] definitely hampers student expression," said John McNay, a history professor at UC's Blue Ash campus and former president of the UC chapter of the American Association of University Professors. "The AAUP strongly supports freedom of inquiry for the student body, but it is difficult to have such freedom with such tight restrictions."
Landon Gray, a third-year history student and member of UC Young Americans for Liberty - which recently contested the proposed tobacco-free campus initiative at UC - agrees with McNay concerning student's voices being suppressed.
"I find it hard to believe that we really adhere to a system that restricts the rights of students in such a way, especially since we pay to go here, to a public institution," Gray said. "I find it hard to believe that a public institution is to be in such a violation of constitutional policy, and in doing so violating students, staff and the average citizen's rights."
Policies like the waiting period to use a table in TUC are among some of those restrictions UC places on students, McNay said.
"It is not just the free speech zone that is bad," McNay said. "The wait time before you can occupy a space or even set up a table in TUC is way too long. UC requires five business days while other nearby state universities [such as] Wright State and Ohio University require only 24 hours. Both universities also provide many more locations where free speech can take place."
McNay also cites a recent movement by college students nationwide to protest the issue of rising student debt as one example of how UC's policy hampered local efforts.
"By the time UC students were prepared to join the protest, there was not adequate time to apply for a permit," McNay said.
While UC students have adapted to the policy and are adhering to it, McNay said, it has made student efforts to have their voices heard more difficult.
"Students protesting Senate Bill 5 and the charter university concept became very adept at following the rules, but organizing a rally of some kind or collecting signatures should be easy, not difficult," McNay said.
Despite the recent attention, however, McNay admits he has not seen student's ability to voice their opinions decrease during his tenure at UC nor has seen it negatively affect faculty instruction, due to academic freedom for faculty being a staple of the AAUP's contract with UC.
"I've not seen things get worse, though the incident during [Ohio Gov. John Kasich's] visit may be a low point," McNay said.
Kasich's visit to UC in 2011 drew the ire of both students and faculty - including McNay - when demonstrators protesting Kasich's support of charter universities and Senate Bill 5 were escorted by UCPD officers from outside Baldwin Hall - where Kasich was visiting - to the free speech area on McMicken Commons, due to the demonstration not being sponsored by a university group or being scheduled in advance.
"Faculty, students and even some local labor leaders who had gathered to question the governor were forced into the free speech zone by UC security," McNay said. "I don't think any university should demonstrate this kind of attitude toward free speech or to its faculty."
McNay hopes the recent situations concerning free speech at UC opens the eyes of administration, he said.
"I hope that the negative attention causes the administration to be open to change," McNay said. "The UC policy just really stands out as being the most restrictive among public universities. I don't think that is the kind of recognition or the excellence that we all strive to attain at UC."
Gray said he hopes it is the attention of students that is gained, in addition to the administration.
"I certainly hope that UC will recognize the fact that universities initially embraced all sorts of ideas, changes and social revolutions ... But above all, my most sincere hope is that students realize what an infringement [the policy] is, for if you do not know your rights, you have lost them," Gray said.
Gray also believes there will be increased opposition from the student body to the policy as time progresses, he said.
"No matter what the court decision is, I believe as the majority of the student population begins to realize what is going on, there will be progressively more resistance to this unconstitutional idea of a ‘free speech zone,'" Gray said.
To date, the UC Undergraduate Student Government has not received any complaints regarding the policy from the UC student body, said SG President Alan Hagerty.
"Student Government has received no grievances from students or student groups about the free speech policy," Hagerty said. "We did encounter one issue with one particular organization soliciting on campus to promote an event. However, the issue was resolved and the solicitation policy was clearly communicated to the organization."
The policy, however, could be a talking point for SG in the future, Hagerty said.
"Student Government may examine the issue; however, no action has been taken at this point in time," Hagerty said. "Personally, as Student Body president, I cannot deny that a mere 0.1 percent of our campus is designated as a free speech zone. Moreover, I acknowledge many visits by political leaders are announced after the required 15-day reservation window has closed."
The rest of Ohio's universities
While UC is the only Ohio school on FIRE's list of the 12 worst colleges for free speech, it is not the only Ohio school being scrutinized by the organization.
A News Record analysis of the 14 four-year state universities making up the University System of Ohio shows that FIRE lists six of those schools - the University of Toledo, Wright State University, Youngstown State University, Ohio University, The Ohio State University and UC - each as a "red light university," meaning that at least one policy at the university significantly restricts free speech.
Those policies range from free speech areas - such as UC's - to harassment policies and Internet use policies.
Multiple attempts to contact Kim Norris, spokesperson for the Ohio Board of Regents - which oversees the University System of Ohio - for comment were unsuccessful.
The analysis also shows that Bowling Green State University has a similar "Speak Out Area" located in front of its student union designated for individuals and groups, while Kent State University has five recommended areas on its campus for groups or non-registered speakers to host demonstrations or marches.
"Kent State has recommended areas for free speech that can accommodate a large gathering of people, but it is not limited to those specific areas," said Emily Vincent, a KSU spokeswoman.
KSU even goes as far as to limit the use of those areas to one-hour time blocks, unlike UC, which doesn't have a time limit concerning its "Free Speech Area" on McMicken Commons.
OU has 25 specific outdoor areas on its campus that can be reserved for speakers or demonstrations.
"We have not designated any area on campus as a ‘free speech zone,'" said Katie Quaranta, an OU spokeswoman.
"University Policy 24-016 is our only policy on this issue. It lists outdoor spaces that can be reserved for appropriate functions and imposes reasonable restrictions to protect health, safety and university operations."
Like UC, however, KSU does not allow demonstrations or non-university affiliated speakers to take place inside campus buildings, Vincent said.
In fact, a recurring theme in all 14 universities' policies was one of preventing disruption of the learning environment on their respective campuses and preventing violations of fire and safety codes.
Several others Ohio universities have policies similar to UC's regarding to the amount of time required for reserving space on campus for activities and the use of amplification equipment.
Such schools as BGSU and YSU require a 10-day notice to reserve an area for a speaker or event on their respective campuses, much like UC.
While there is not a designated area for speech, The OSU does require a two-week notice to reserve space on its campus.
"We do as a matter of good practice try to work with any group that desires to express their constitutional rights in a respectful and non-disruptive or destructive manner," said Amy Murray, an OSU spokeswoman.
Policies like UC's "Free Speech Area" have also existed previously at some Ohio schools, such as WSU, which had a designated "Speaker's Corner" between two of its campus buildings before revising its policy.
"Wright State University does not now have a policy restricting free speech activities such as demonstrations or petitions to a specific area of campus," said Timothy Gaffney, a WSU spokesman.
"Such a policy existed in the past. The Faculty Senate has revised its Faculty Handbook to reflect the change in policy."
That change in policy now allows individuals and groups at any time during daylight hours to collect signatures, distribute material and speak in any publicly accessible outdoor area on the WSU campus.
It's a change McNay feels would be effective for UC concerning its free speech, he said.
"This section of Wright State's free speech policy seems to demonstrate a more appropriate attitude," McNay said.
The current policy already reflects that attitude, Hand said.
"For the students at UC, I think the issue is that they can just take a look around them," Hand said. "I can't think of anybody's free speech rights being suppressed."
Either way, it is a subject that FIRE has brought to the forefront at UC.
"Before they sign on the dotted line, prospective college students should consider the free speech record of the school they choose to attend," said Robert Shibley, senior vice president of FIRE. "Don't believe universities' paper promises of free speech if they are violating those promises in practice."