FIRE’s Response to American University’s ‘Statement from Vice President of Campus Life Gail Short Hanson Regarding an Incident Involving AU Student Ben Wetmore’
July 18, 2002
Writing for the Foundation for Individual Rights in Education (FIRE), Director of Legal and Public Advocacy Greg Lukianoff:
Before responding to each of the arguments made in the Statement from Vice President Hanson, it is important to note what the Statement does not address: why is American University (AU) still holding on to the videotape that Ben Wetmore made of the event? The camera was running not only during Tipper Gore's speech, but also throughout the entire incident with the campus police. Therefore, the videotape is not just Mr. Wetmore's property, but also crucial evidence in any planned legal action. This is an absolutely vital issue. Mr. Wetmore and his attorney have asked the University for the tape, and FIRE's letters to AU have stressed its importance as evidence. AU refuses even to acknowledge this question.
AU claims that Ben Wetmore was deprived of his tape so that AU could fulfill a clause in a contract with Tipper Gore (a contract, by the way, that AU never has shown). If such a clause exists, then this is an issue between AU and Mrs. Gore. AU would have had to provide clear notice beforehand that videotaping was not permitted, which all witnesses uniformly agree it did not. This alleged contract clause does not create the right to confiscate Mr. Wetmore's videotape. Taking this from Mr. Wetmore was, in the most literal sense, theft. The tape does not belong to AU. (We will return to this issue below.)
If the facts are indeed as AU alleges, it has nothing to worry about, and it should have no problem handing over the tape. The fact that it has held onto it for nearly four months despite demands for the tape's return is extremely suspicious, and—as the legal pressure mounts to turn it over—increasingly looks like obstruction of the effort to secure justice and truth.
Now FIRE will address the most objectionable segments of AU's Statement (quotes from the Statement appear in italics):
"The incident is being used as a 'cause celebre' by some individuals and advocacy organizations..."
American University should be ashamed of dismissing this situation as simply a "cause célèbre," implying that it is a trivial matter blown out of proportion by someone else's agenda. On his website, Mr. Wetmore reports on what he believes are flawed policies and abuses of power by the AU administration. AU now has punished him, severely, for his legitimate political and journalistic activities. This case involves stark abuses of power by campus police and administrators, theft of a student's property by University officials, clear evidence of targeting a student for his acts of critical political dissent, a denial of elementary due process and fundamental fairness, and a distortion of both the law and the principles of free speech.
As for FIRE's involvement (the only "advocacy group" that has been involved with this case since it began), we initially approached AU to try to resolve this informally. Our efforts and the efforts of an attorney from our Legal Network were essentially ignored.
This case differs from most other FIRE cases. Ordinarily, a university caught abusing a student's rights so egregiously would either deny responsibility or step back from the situation, make amends, and do its best to undo the wrong. The publicity that this case has generated is a direct result of the outrageousness of AU's actions and its obstinacy with regards to mending these wrongs. If AU had ever taken rights seriously, this all would have been avoided.
"[S]ome individuals and advocacy organizations…have circulated misleading and in some cases false information about what occurred. The University maintains a commitment to protect student privacy rights respecting confidential information and processes; therefore, certain details and information cannot be reported."
AU is charging that FIRE made false claims, but that it cannot identify or substantiate those charges due to confidentiality protections. In fact, AU already has spoken to The Washington Post, the Student Press Law Center, and now the AU community about this case. However, the Family Education Rights and Privacy Act (FERPA) forbids universities from disclosing any personally identifiable information about a student's disciplinary proceedings. AU cannot have it both ways. AU wishes to disclose selected information in a truncated and misleading way, but then to seek refuge in FERPA when it does not want to admit to something. From our earliest communications with AU, we have asked them to correct any misstatements of the facts. If AU believes that FIRE has any of the facts of the case wrong, we repeat our invitation to them to prove their claims. Indeed, AU's most important first step would be to return the videotape to Ben Wetmore. Then, everyone could see what actually transpired.
"The incident in question centers on a contractual arrangement made between the Kennedy Political Union, an AU student organization, and a speaker's bureau to have Tipper Gore make a presentation at a student-run event. The terms of the contract prohibited photographing or videotaping Ms. Gore's presentation, which included copyrighted materials."
We cannot accept that Mrs. Gore's contract prohibited videotaping unless or until we see this contract. AU still has not proven that this claim is true. Even if this provision is in the contract, this does nothing to justify AU's actions. As we said in our first letter to AU:
"It is fully established by all accounts, including those of the University, that there was no notice whatsoever that videotaping would not be allowed.The University's failure to enforce the contract is a matter between it and Mrs. Gore, and it in no way affects Mr. Wetmore. If the University had promised to pay the speaker by charging admission, failed to notify attendees of that fact, and then arrested them all for "theft," your actions would be identical to this case."
It is very significant that, according to The Washington Post, Mrs. Gore's office has said that this issue is entirely between Mr. Wetmore and the University. As the holder of the supposed intellectual property interest wants nothing to do with the situation, AU's excuse for holding onto to the tape and punishing Mr. Wetmore has essentially vanished. Without appealing to its contract with Mrs. Gore, what possible justification could AU have for pursuing this student and holding onto his videotape? The lack of a sensible answer to this question strongly indicates that the University is after the student himself. AU administrators may be motivated by personal animosity, or by a desire to retaliate against Mr. Wetmore for considering criminal charges against the University and to preempt him from doing so.
"[Mr. Wetmore] was told by an AU Public Safety official that this was not permitted. He was asked to stop. He ignored the request…"
This statement completely ignores Mr. Wetmore's claim that the officers refused to identify themselves. It is completely legitimate for someone to demand to know by what authority he or she is being told to stop a protected activity. In fact, AU should strongly encourage its students to make sure that people who claim to be campus police actually are. Even the campus police's own report (presumptively the most favorable account to AU's side) does not say the campus police explained who they were. Their official testimony is quite remarkable: "Officer Lazarus adjusted his suit jacket so that Mr. Wetmore could see his badge on his left hip." That is scarcely the process of identification by officers (if it in fact occurred) that should satisfy any student or other citizen. If AU decides to release the tape, of course, we will all be able to examine if this explanation of events is accurate.
"[Ben Wetmore] was escorted from the event to the hallway outside and his tape and camera were confiscated. He was taken to Public Safety where he made a statement, and was released. His camera was later returned."
AU ignores that, according to the campus police report, "Officer Lazarus pried the camcorder from Mr. Wetmore's hands, put him on the floor and placed him in handcuffs." AU ignores Karen Gerlach, the University's own assistant director of student activities, who said that she thought the officers were "escalating the situation and that it didn't need to be handled in such a way." It ignores Mr. Wetmore's claim that his fingers were bent behind his back while he was being pinned to the ground and handcuffed. Most importantly, it ignores the fact that all this happened to a student for trying to report on what was advertised as an open event. Karen Gerlach, the assistant director of student activities (and now the director of that office), testified in writing that, when she arrived at the scene in the arena and expressed her desire that nothing disrupt the event, "Mr. Wetmore then got up and came outside of Bender Arena." She further testified, "Mr. Wetmore stated that Brad Cheney [director of the Kennedy Political Union, the event's sponsor] only referred to flash photography and did not mention video or any other form of recording. I indicated that I understood that that is what Brad stated…" Ms. Gerlach further testified: "The Kennedy Political Union Staff did not have signs posted at the event stipulating this condition [no video recording] nor was a clear announcement of this made at the beginning of the event. It was only indicated that flash photography was not allowed."
"[T]he issue was adjudicated by a disciplinary conference board of two students and a Student Services administrator."
AU does not bother to explain that the director of judicial affairs and mediation services, Katsura Kurita, whose decision it was to accept the charges, also served as judge during the hearing, and as one third of the jury. Another juror was Kurita's own law clerk. The final juror was Mr. Wetmore's political opponent from student government who, in 2000, petitioned the Student Confederation for Mr. Wetmore's impeachment. Fairness demanded that these three jurors recuse themselves from this case. Instead, they ignored Mr. Wetmore's requests that he have a jury free from personal or professional bias. It is disgraceful that a great university would try a student in what can most charitably be deemed a "kangaroo court," and then hide behind the verdict for its own defense.
"The board found that Mr. Wetmore was responsible for some charges and not responsible for others."
AU has repeated this statement numerous times, and it is highly deceptive. Mr. Wetmore was charged with seven offenses, one of which was the attempt to commit any of the above charges. Since he was found guilty of five of the charges, it would be impossible (at least in any normal legal system) to find him guilty of both the act and the attempt to do the act, and thus he was acquitted of this spurious charge.
The other charge of which he was acquitted was "intentional or reckless" interference with a sponsored event. In any system based even loosely on the American legal system, he could not be guilty of this, because a conviction would require some sort of intent to break the rules (not the intent to engage in constitutionally protected journalistic practice, as was the case).
This statement is an attempt by AU to draw attention from the five convictions for simply taping what Mr. Wetmore had every reason to believe was a public event. For this "crime," he was found guilty of possessing stolen property, threatening the health and safety of the arresting officers, disorderly conduct, failing to immediately comply with a University official, and the University equivalent of trespass. Whenever a critic of an administration is arrested and charged with suspiciously spurious offenses, one has to look very carefully at the true motives behind the charges. The severity of the findings for simply taping an event should be proof enough that AU was targeting Mr. Wetmore for other reasons. Those reasons are quite apparent here. This is further confirmed by an April 26, 2002 letter to Mr. Wetmore's attorney, in which AU's vice president and university counsel, Mary E. Kennard, criticized Wetmore for ignoring the University's "admonitions" not "to post derogatory materials about staff on his website"—as if it were a crime to be publicly critical of the University.
"As a disciplinary proceeding, the conference is not a trial or a court of law. It is an educationally driven process that has been tested over time to ensure a thorough review, fair treatment, and adherence to the Student Conduct Code."
The claim that these disciplinary hearings are not formal "trials" but for "educational" purposes is used by many schools to excuse their violation of the most basic standards of fair procedure. It is dishonest to call this process "educational." It is a punitive process designed to punish or expel students who get out of line. Students should be afforded sound and fair procedural protections—not denied them because the experience is supposedly "educational." Further, AU did not provide Mr. Wetmore with anything remotely like an "impartial" jury. AU also cannot claim fairness when a student in Mr. Wetmore's situation has no right to an appeal. The denial of an impartial panel and a right of appeal are the very opposite of principles of fairness and legitimacy.
"The sanctions imposed are consistent with these principles."
In fact, Mr. Wetmore was placed on probation, warned of expulsion for future activities, saddled with forty hours of community service cleaning the auditorium, removed from an elected student position, and patronizingly forced to complete papers on conflict resolution (not to mention that he was deprived of his own property, and that he was abused and humiliated for activity that should be completely protected).
"In response to Mr. Wetmore's claims that the procedures employed in detaining him and confiscating the tape were excessive, the Director of Public Safety reviewed the actions of the officers and found that excessive force was not used."
FIRE expressed its concern that the campus police acted illegally and used unnecessary force. AU's answer is that it asked the campus police department, who found their own actions correct. AU must return the tape to Mr. Wetmore so we all may know what actually happened. If this were a criminal investigation, the repeated failure to turn over the tape would be deemed contempt, and any effort to destroy the tape would be an obstruction of justice. The tape itself is central to this matter, and AU's refusal to turn it over speaks volumes.
"Mr. Wetmore's own request for an independent review of his claim by the Metropolitan Police Department (MPD) resulted in a dismissal of the claim and a determination that no further action was warranted by MPD."
There is no evidence whatsoever of any "independent review" or "determination" by the MPD. If AU has any proof of such a review or determination, let it produce it.
"The University holds no animus towards Mr. Wetmore…"
The animosity that the administration holds towards Mr. Wetmore is common knowledge at AU. He was chastised for his "derogatory" website before his trail, rebuked again for the website during the supposedly impartial proceedings, and, in a letter sent to him by the University counsel, scolded yet again for his journalistic activities. AU's animosity towards Mr. Wetmore is clear even in this very statement where they dismiss him as a mere "cause célèbre" (as opposed to being someone who has been seriously wronged). Mr. Wetmore knew it from the start: if AU could find any pretext, however flimsy, they would prosecute him to the fullest possible extent. This is what happened in this case (expulsion legally would have required greater procedural protections), and all the evidence points to the University's animus towards Mr. Wetmore for his website and journalistic activities.
"American University does not regard this matter as a First Amendment issue."
In failing to "regard this matter as a First Amendment issue," AU ignores the fact that Mr. Wetmore's case touches one of the principles and rights that the First Amendment most explicitly protects: freedom of the press. By attacking a student for engaging in legitimate journalistic activities and targeting him for his public opinions, AU is patently violating the spirit of our First Amendment, free speech and freedom of the press. Knowing Mr. Wetmore's fate, what student journalist would ever willingly accept the role of dissenter at AU?
This case is every bit about freedom of speech and freedom of the press. AU's assertion that it is not can come only from blindness or willful ignorance.
As institutions that exist to educate students on how to live in a free society, America's colleges and universities have a higher calling and a deeper duty to justice, fairness, and liberty. AU's actions here betray that special role and stain the reputation of a distinguished institution. FIRE made several attempts to prevent this case from escalating into a national scandal, but now that we are engaged we will remain involved until Ben Wetmore's rights are restored and his property returned. We expect, with the help of the AU community and an informed public, to bring this shameful situation to a just conclusion.