thefire.org

FIRE's Second Letter to RIC

August 31, 2004

August 31, 2004

President John Nazarian

Rhode Island College
600 Mt. Pleasant Avenue

Providence, Rhode Island 02908

URGENT

Sent By U.S. Mail and Facsimile (401-456-8287)

Dear President Nazarian:

Thank you for your response regarding the matter of Professor Lisa Church, dated August 25, 2004. Before I detail the many concerns your letter raises, I must emphasize FIRE’s position: there should be no further proceedings in the matter involving Professor Church. RIC is in a perilous position. It is attempting to justify an unconstitutional action by referring to the requirements of an unconstitutional speech code. However, the college still has an opportunity to make a decisive statement in favor of the First Amendment and academic freedom. We sincerely hope that you will join FIRE in defending civil liberties instead of pursuing a path of censorship and oppression.

We have heard other college administrations claim that they must “investigate” or at least hold “preliminary meetings” on any complaint that a student brings, even if the complaint implicates rights protected by the First Amendment. This practice is simply invalid. If a student complained to you that he felt harassed when he discovered one of his professors was Catholic, and he could not stand to be around someone who held such beliefs, it would be clear to all involved that the situation would not require an investigation. The speech currently in question at RIC is no less protected by the First Amendment than the hypothetical professor’s right to have Catholic beliefs. Since this case involves merely the refusal to punish clearly protected expression, absolutely no reason exists for RIC to proceed.

We ask you to follow the example of University of Alaska President Mark Hamilton . Faced with a very similar demand to “investigate” protected expression, President Hamilton forcefully defended the inviolability of constitutional rights. He wrote to his administration that “responses to complaints or demands for action regarding constitutionally guaranteed freedoms of speech cannot be qualified. Attempts to assuage anger or to demonstrate concern by qualifying our support for free speech serve to cloud what must be a clear message…There is nothing to ‘check into,’ nothing 'to investigate.’” [Emphasis added] The same conditions hold true in the case of Lisa Church. We are including President Hamilton’s sagacious response with this letter.

This is a serious case; therefore, your letter deserves a serious response. In the pages that follow, FIRE addresses in detail each of the assertions made in your letter and demonstrates how the very code of conduct you are applying to Professor Church is an unconstitutional restriction on freedom of speech.

RIC’s Speech Policies are Unconstitutional

The most worrisome aspect of your response is that you rely on a clearly unconstitutional speech code to justify unconstitutional actions. You cite the code:

Rhode Island College affirms its commitment to ensuring an environment for all students and employees which is fair, humane, and respectful; an environment which supports and rewards students and employees on the basis of relevant considerations, and which is free from discriminatory, inappropriate, and disrespectful conduct or communication. [Emphasis added.]

We assure you that state institutions have no power to ban speech they find “inappropriate” or “disrespectful.” As the Supreme Court has said in various ways on numerous occasions, “If 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.” Texas v. Johnson, 491 U.S. 397, 414 (1989) [1]. Nowhere does this principle apply with more force or urgency than on our nation’s campuses. I implore you to change course in this case, and to allow free speech the breathing room it needs to thrive.

We were further distressed to see that the very next section of the code states:

As an institution of higher education dedicated to fostering and upholding higher order values of human dignity and respect for the individual, Rhode Island College expects standards of professional behavior which exceed those minimally prescribed by law.

The standards “minimally prescribed by law” that this code cavalierly rejects are, in part, imposed on public institutions because more extensive codes violate individuals’ basic rights. It is neither noble nor admirable to do away with the protections of the First Amendment, and it is certainly not within the power of a state college like RIC to do so. Freedom is a concern of the highest order, and the Supreme Court has been vigilant in preventing institutions from eroding freedom in the name of state-sponsored views of propriety. I strongly suggest you reexamine your code and remove elements that so clearly attempt to abrogate the rights provided by the Constitution of the United States and decades of Supreme Court case law.

In our first letter (attached), we explained that the First Amendment does not tolerate bans on offensive speech even if such a ban is re-characterized as punishing only “harassment” or “discrimination.” We have even seen indications that RIC may now be attempting to reclassify this incident with Lisa Church as one involving “intimidation.” If the college is considering this approach, we highly recommend that it familiarize itself with Virginia v. Black, 538 U.S. 343, 360 (2003), which states, “Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Nothing in RIC’s situation indicates that anyone was in fear of physical harm in any objectively reasonable sense, so we hope that an attempt to use an “intimidation” rationale to justify the college’s actions will not enter into this case.

RIC’s Response is Factually Inaccurate

Early in your letter to FIRE you write, “Your letter acknowledges that your understanding of the facts is based solely upon information provided to you by Professor Church.” This characterization is highly misleading. As indicated in our previous letter, we relied heavily on detailed information written by RIC’s own employees.

It is also incorrect to say that “since there has been no hearing to date, even at the Step 1 level, the ‘facts’ as perceived by the complainant have yet to be presented.” Professor Church herself has received a copy of the complaint filed against her with the Affirmative Action Office, and in an e-mail to Patricia Giammarco and Lisa Church dated July 27, 2004, college counsel Nicholas Long discussed the “‘four corners’ of the complaint.” This indicates that Long at the very least has read the complaint. In addition, Professor Church reports that Scott Kane told her on May 4 that he had met with the complainant, and that Pat Giammarco told her on July 13 that she had met with the complainant as well. Professor Church also has knowledge that the other three people named in the complaint have already had their hearings and have given testimony and witnesses’ statements. RIC is clearly aware of the facts in this case.

The point, however, is that even if the facts as presented in the complaint are considered in the most favorable light for the complainant, no possible disciplinary issue exists; thus Professor Church should not be subject to any hearings at all. In the July 27 e-mail cited above, Long explicitly compares this situation with a “motion to dismiss for failure to state a claim” in court.

Allowing the “investigation” of claims that implicate clearly protected speech destroys the atmosphere of open debate and forthrightness even if the eventual outcome of such investigation is a ruling that the speaker is “innocent.” Long, in his July 27 e-mail, implies that RIC’s policy allows for precisely this kind of proceeding when he says that “the College [is] well served by following a process that allows a complainant to ‘tell their story.’” RIC’s statements to the press also indicate that proceedings can take place even when discipline is not an option. Yet RIC itself acknowledges another way for a complainant to tell his or her story�"by filling out the complaint submission form. In this case, the complainant “told her story” on that form, and she did not state any ground upon which Professor Church, or anyone else involved, could constitutionally be punished. RIC has failed to produce any evidence that such a ground even exists.

Professor Church Did Not Engage in Censorship�"She Refused to Censor Constitutionally Protected Expression

We were very interested to learn your interpretation of the nature of the charge against Professor Church; that “in her capacity as an administrator of the College’s cooperative preschool program, [she] failed to respond appropriately to a complaint about one student/mother brought by another student/mother, by inter alia, seeking to censor a proposed discussion on the subject of racism.” This comes as news both to FIRE and to Professor Church. The complaint against Professor Church makes no such claim. In fact, the clearest statement from RIC of the offense with which she was accused is from a three-word July 28 e-mail from Giammarco simply reading, “Hostile environment racism.” FIRE also wrote to you on August 2 pointing out that Professor Church had not been charged by her accuser with anything that would be punishable. However, we received no response from you until after we took the case public, despite our request to you to correct any misunderstanding of the facts and our explicit desire to resolve this dispute discreetly if possible. Considered together, RIC’s actions indicate a lack of good faith on the part of the college in addressing this situation. No system can be considered just if the accused is unaware of the charges against him or her.

It is ironic, and frankly unbelievable, that RIC now sees fit to charge Professor Church with censorship when the very reason for the complaint against her is that she would not take action to censor or punish the mothers who were offending the complainant in the first place. Professor Church did not seek to “censor” any discussion of racism. The complaining mother wanted to discuss the incident at a school meeting. Professor Church refused, as the conversation had literally nothing to do with the school besides taking place in the school building. The conversation was not about school issues, and involved no one but the three participants. Regardless, the offended mother eventually was able to bring up her concerns about racism in a school meeting, and the staff of the school voluntarily attended a “sensitivity training” session given by RIC administrator Aaron Bruce as a result of the offended mother’s concerns.

RIC’s Investigation is Disciplinary, Not Mere “Fact-finding”

Your statement that Professor Church “in theory…could be subject to discipline if it were established…that she willfully engaged in a deliberate act of illegal discrimination,” but that “discipline is not the focus of the complaint and discipline is not generally the focus of the Complaint Resolution Procedure” is hard to reconcile with both the facts and with RIC’s own policies. Indeed, while the hearing procedure states that it is “available to address any concerns of members of the College community,” it also states that when the hearing process is used, “[d]isciplinary action may range from oral reprimand to termination of employment of [sic] expulsion from the College….” Furthermore, the mere fact that you concede that disciplinary sanctions are possible makes it very clear that these are judicial proceedings, not some voluntary, educational exercise.

Further, the complaint against Professor Church makes clear that the mother seeks that Professor Church be disciplined in some way. Indeed, the complaint was turned in on RIC’s “Affirmative Action �" Discrimination Complaint Form,” which specifically asks what “corrective action” the complaining person would like to see taken, and asks the complaining person who he or she feels is responsible for the discriminatory action. Lisa Church is among the four people named as responsible for the “discrimination,” and the complainant specifically states that she wishes action to be taken against Professor Church. Despite the assurance to the contrary in your letter, and despite Jane Fusco’s statements to the Providence Journal for its article on this matter dated August 27, the evidence indicates that discipline is the focus of the complaint filed in this instance.

In addition, your assurance to us that Professor Church “faces no campus discipline because of any exercise of her First Amendment rights” merely assures us of a fact that was never in dispute. Nobody has accused Professor Church of making any “offensive” comments. If that was her offense, then punishing her certainly would conflict with her First Amendment rights. Instead, RIC has taken this one step further�"it is holding formal disciplinary hearings because Professor Church refused to do what the law prohibits her from doing. For Professor Church, it is not First Amendment rights at stake�"it is basic justice and fairness. No person, anywhere, at any time, should be investigated or put on trial for obeying the law.

You also refer in your letter to the “exchange of e-mails discussing hypothetical situations” concerning RIC’s policies on harassment and intimidation, which you claim caused “some misunderstandings and confusion.” On the contrary, college counsel Nicholas Long did a largely admirable job of refuting Patricia Giammarco’s interpretation of RIC’s policies and explaining why and how the First Amendment’s guarantees of freedom of expression apply to RIC. The situations discussed were hardly “hypothetical,” as this entire case turns on whether Professor Church could or should have done anything about the offending mothers’ constitutionally protected expression of opinion. If she had done anything to those mothers that would have constituted punishment of them for their expression, Professor Church would have been violating their First Amendment rights.

Conclusion

We appreciate this opportunity to discuss this case with you, and would be happy to continue the discussion as necessary. RIC must understand, however, that it is grossly off-track in its handling of this case thus far. FIRE therefore repeats its urgent request that RIC cease its current proceedings against Professor Church.

Sincerely,
David French
President

cc:

Dan King, Vice President for Academic Affairs, Rhode Island College

Gary Penfield, Vice President for Student Affairs, Rhode Island College

Scott D. Kane, Associate Dean for Student Life, Rhode Island College

Patricia Giammarco, Director of Affirmative Action, Rhode Island College

Nicholas T. Long, General Counsel, Rhode Island College

Robert G. Tetreault, Director of Human Resources, Rhode Island College

Jason Blank, President, RIC/AFT Local 1819

Professor Lisa Church

Encl.

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