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Writing about Attraction to Professors Gets Oakland U. Student Suspended

February 10, 2012

Here is today's press release: 

DETROIT, February 10, 2012—Oakland University near Detroit has suspended a student for three semesters, barred him from campus, and demanded he undergo "sensitivity" counseling because he wrote in a class assignment that he found his instructors attractive. While the course specifically permitted students to write creatively about any topic, the university bizarrely chose to classify his writing as "unlawful individual activities." Joseph Corlett came to the Foundation for Individual Rights in Education (FIRE) for help. 

"This is a wild overreaction to a student's creative writing," said FIRE President Greg Lukianoff. "The university has essentially issued a straitjacket to every writing student to protect the delicate sensibilities of faculty and staff." 

Corlett's ordeal began when Corlett submitted his writing journal to his Advanced Critical Writing professor in early November 2011. Her course materials describe a student journal as "a place for a writer to try out ideas and record impressions and observations," and state that it should contain "freewriting/brainstorming" and "creative entries."

One entry in Corlett's journal, titled "Hot for Teacher," tells a story of being worried about being distracted in class by attractive professors. A separate September 23 entry states that his professor is like Ginger from the television series Gilligan's Island, while another professor is like the character Mary Ann.

In an email on November 29, his professor announced to some of her colleagues, "Either Mr[.] Corlett leaves campus or I do." On December 7, Corlett met with Dean of Students and Assistant Vice President of Student Affairs Glenn McIntosh and with Vice President for Student Affairs & Enrollment Management Mary Beth Snyder, who pressured Corlett to withdraw from his winter semester classes.

FIRE wrote Oakland University President Gary D. Russi on December 16, explaining that Corlett's creative writing was fully protected under the First Amendment, which is binding on public universities such as Oakland University. FIRE explained that "it is simply impossible to conclude that Corlett's germane, class-related expression" constituted unprotected speech. 

Oakland University Assistant General Counsel Boyd C. Farnam replied on December 23, claiming that Corlett "is not being prosecuted," but on January 3, 2012, Assistant Dean of Students Karen Lloyd sent Corlett a letter charging him with "unlawful individual activities" on the basis of the writing journal alone. Corlett attended a disciplinary hearing on January 19. 

In a letter to Corlett dated January 20 but emailed on January 26, McIntosh wrote that Corlett had been found "guilty" and was being sanctioned with suspension for three semesters through Fall 2012; no ability to transfer credits during the suspension; persona non grata status with a warning that he would be arrested for criminal trespass if he entered the campus; and disciplinary probation for the rest of his college career. If Corlett chooses to enroll for Winter 2013 courses, he also must show evidence of "counseling ... to work on sensitivity issues."

Corlett appealed yesterday with the help of attorney Brian Vincent, a member of FIRE's Legal Network. Corlett is barred from campus but remains enrolled in online classes in ethics and religion pending the outcome of his appeal. His wife has supported him throughout the ordeal.

"Oakland University is treating Corlett like a student with a mental disability who needs counseling for insensitivity," said FIRE Vice President of Programs Adam Kissel. "I can hardly imagine what kind of counseling Oakland would have required for Quentin Tarantino, Vladimir Nabokov, or Stephen King."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America can be viewed at thefire.org.

TAKE ACTION: Write to President Russi and ask Oakland University to respect Corlett's right to free expression today! 

CONTACT:
Adam Kissel, Vice President of Programs, FIRE: 215-717-3473; adam@thefire.org
Gary D. Russi, President, Oakland University: 248-370-3500; russi@oakland.edu

Permalink | E-mail comments | Posted on February 10, 2012, at 4:08 PM

Sixth Circuit Relies on High School Cases to Assess Graduate Student’s Rights

February 10, 2012

Last week here on The Torch, I discussed the interesting ruling from the United States Court of Appeals for the Sixth Circuit in Ward v. Polite (.PDF). Before discussing the facts of the case and the Sixth Circuit's holding, I noted that while the court reached the right result by allowing the First Amendment lawsuit brought by expelled graduate student Julea Ward to continue, it did so in a way that may harm college student rights in the future.

Here's why: In analyzing Ward's claim that her First Amendment right to freedom of expression had been violated by Eastern Michigan University's decision to expel her, the Sixth Circuit relied on case law regarding student rights in public high schools. 

This is problematic because courts have long recognized a distinct difference in the First Amendment rights available to K-12 students and college students, granting far more limited rights to high school students while affording public college students full First Amendment protection. The reasons for the discrepancy revolve around several factors: the differences in pedagogical mission between high schools and college; the fact that high schools are presumed to act in loco parentis (in place of the parent); and the average age of the students. And as former FIRE Justice Robert H. Jackson Legal Fellow Kelly Sarabyn has argued in her legal scholarship, the Twenty-Sixth Amendment, granting eighteen-year-olds the right to vote, was commonly understood at the time of passage "to entail the confirmation of full citizenship in the political order"—and, accordingly, to draw a bright line between the limited speech rights of high school students and the full speech rights of college students. 

Other appellate courts have explicitly recognized this distinction. In striking down the University of the Virgin Islands' speech codes on First Amendment grounds in McCauley v. University of the Virgin Islands, the United States Court of Appeals for the Third Circuit in 2010 rejected the university's reliance on high school cases in its briefing, spelling out these differences at length and echoing arguments FIRE made in the amicus curiae brief we submitted to the court. Articulating the differing purposes of K-12 and higher education, the Third Circuit found that while grade and high schools "prioritize[] the inculcation of societal values .... [p]ublic universities encourage teachers and students to launch new inquiries into our understanding of the world."

Unfortunately, the Sixth Circuit's opinion in Ward rides roughshod over these considerations, treating legal precedent involving the rights of high school students and college students as though they were effectively interchangeable and of equal applicability in evaluating the merit of Ward's First Amendment claim. 

Specifically, the Sixth Circuit relies heavily on the Supreme Court's holding in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, high school student journalists for Hazelwood East High School's paper, the Spectrum, brought a First Amendment suit after two pages containing two separate articles—one about student pregnancy, and one about "the impact of divorce on students at the school"—were deleted by the school principal from an issue prior to publication. The paper was written for a journalism class—a crucial fact, because in holding that the school's censorship of the articles did not violate the First Amendment, the Court found that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

As long-time FIRE supporters likely know, despite its high school origin, Hazelwood's broad grant of discretion to administrators seeking to silence student speech in "school-sponsored expressive activities" regrettably migrated to the collegiate setting, resulting in cases like Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc). In Hosty, an administrator at Governors State University in Illinois censored a student newspaper that had harshly criticized the university. In finding that the university's exercise of prior restraint over the student paper didn't violate the First Amendment, the United States Court of Appeals for the Seventh Circuit closely followed the analytical framework established by Hazelwood, blurring the clear distinction between the rights of high school students producing a paper for a journalism class and college journalists producing an independent college newspaper. (Check out FIRE's Policy Statement on Hosty v. Carter for our full analysis of the opinion's missteps. Interestingly enough, in the wake of the Supreme Court's denial of certiorari for the case, several states, including Illinois, passed "anti-Hosty" legislation to preempt the ruling and protect student journalism.) 

In considering Ward's First Amendment claim, the Sixth Circuit in Ward leans on Hazelwood to support its contention that "governmental bodies, including public high schools and universities, have considerable authority to control their own speech." Specifically, the court finds that schools can control their own curriculum—and thus a student's First Amendment rights, even if not checked at the schoolhouse gate (per the Supreme Court's famous decision in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506), are far reduced in the classroom setting as a function of pedagogical control. The court writes: 

All educators must be able "to assure that participants learn whatever lessons the activity is designed to teach." Hazelwood, 484 U.S. at 271. Just as a junior high school English teacher may fail a student who opts to express her thoughts about a once-endangered species, say a platypus, in an essay about A Tale of Two Cities, see Settle, 53 F.3d at 155, so a law professor may fail a student who opts to express her views about Salvador Dali and the fourth dimension in a torts exam. That the First Amendment protects speech in the public square does not mean it gives students the right to express themselves however, whenever and about whatever they wish on school assignments or exams. "A school need not tolerate student speech that is inconsistent with its basic educational mission." Hazelwood, 484 U.S. at 266. 

This point, which the court makes at considerable length, is of course fair enough: schools have the right, as a matter of both basic pedagogy and institutional academic freedom, to set the parameters of academic study, and teachers may determine how best to teach. (This is why FIRE generally doesn't get involved in cases involving simple grading disputes.) Indeed, the Sixth Circuit might have saved itself some time and simply relied on Justice Felix Frankfurter's concurring opinion in Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957), in which he highlighted "‘the four essential freedoms' of a university-to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." [Internal citation omitted].

Instead, the Sixth Circuit, like the Seventh Circuit in Hosty, imports Hazelwood's core holding—"public educators may limit ‘student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns'"—from the high school arena into higher education. The court explicitly acknowledges this importation, again at length: 

The Hazelwood test, it is true, arose in the context of speech by high school students, not speech by college or graduate students. But for the same reason this test works for students who have not yet entered high school, Curry ex rel. Curry v. Hensiner, 513 F.3d 570, 576-78 (6th Cir. 2008) (elementary school); Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 155 (6th Cir. 1995) (junior high school), it works for students who have graduated from high school. The key word is student. Hazelwood respects the latitude educational institutions-at any level-must have to further legitimate curricular objectives.

[...]

Nothing in Hazelwood suggests a stop-go distinction between student speech at the high school and university levels, and we decline to create one. Hosty v. Carter, 412 F.3d 731, 734 (7th Cir. 2005) (en banc) (applying Hazelwood in university setting); see also Keeton v. Anderson-Wiley, No. 10-13925, ___ F.3d ___, 2011 WL 6275932, at *7-8 (11th Cir. December 16, 2011) (same); Axson-Flynn, 356 F.3d at 1289 (same); Brown v. Li, 308 F.3d 939, 949 (9th Cir. 2002) (same). To our knowledge, just one circuit has gone the other way-and that in a footnote, Student Gov't Ass'n v. Bd. of Trustees of Univ. of Mass., 868 F.2d 473, 480 n.6 (1st Cir. 1989), and even then based on what seems to be a misconception that Hazelwood decided the issue (it did not), see Hazelwood, 484 U.S. at 273 n.7.

The Sixth Circuit justifies bringing Hazelwood's holding into the higher education context by noting that Hazelwood can be read as requiring would-be college censors to consider the "maturity" of the students they're silencing: 

By requiring restrictions on student speech to be "reasonably related to legitimate pedagogical concerns," Hazelwood allows teachers and administrators to account for the "level of maturity" of the student. 484 U.S. at 271. Although it may be reasonable for a principal to delete a story about teenage pregnancy from a high school newspaper, id. at 274-75, the same could not (likely) be said about a college newspaper. "To the extent that the justification for editorial control depends on the audience's maturity, the difference between high school and university students" makes all the difference. Hosty, 412 F.3d at 734.

But, as that cite to Hosty makes all too clear, assuming that administrators will check their impulse to censor by considering the maturity of the students they're seeking to silence just isn't much comfort for organizations and advocates like FIRE that work to protect college student rights. Frankly, our case archive is just too large. So even though Hazelwood is being deployed by the Sixth Circuit here in support of a relatively straightforward, uncontroversial point—"When a university lays out a program's curriculum or a class's requirements for all to see, it is the rare day when a student can exercise a First Amendment veto over them"—the mere suggestion that universities may, in the absence of an explicit "stop-go distinction," rely on high school speech restrictions to justify collegiate censorship should be of real worry. Again, Hosty is a prime example. It's worth remembering, too, that there's no stated "stop-go distinction" in, say, Morse v. Frederick, 127 S.Ct. 2618 (2007) (holding that the suspension of a high school student for a banner reading "BONG HiTS 4 JESUS" did not violate the First Amendment because "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use"), so what's to stop the wholesale importation of other restrictions on high school student speech into the college context? 

And of course, courts citing the Sixth Circuit's lengthy discussion of Hazelwood's applicability to college speech may not be doing so for such relatively benign ends. While the Sixth Circuit's use of Hazelwood here is essentially cabined to the question of curricular control, by supplying future courts with pages of dicta discussing why Hazelwood is good law on college campuses, the court has nevertheless provided would-be campus censors with plenty of room for mischief. 

Permalink | E-mail comments | Posted by William Creeley on February 10, 2012, at 3:44 PM

Richard Epstein and John Yoo on OCR, Due Process, and Title IX

February 10, 2012

Over at Ricochet, law professors Richard Epstein of NYU and John Yoo of UC Berkeley have a podcast this week that is well worth a listen. Among other topics, Epstein and Yoo discuss the Department of Education's Office for Civil Rights (OCR) and its harmful intrusion upon due process rights on campus through the April 4, 2011, "Dear Colleague" letter. The discussion, which begins around the 15-minute mark of the podcast, is enlightening and comes highly recommended.

For more from Epstein on these and related issues, you can read his piece, "Title IX or Bust," for the Hoover Institution journal Defining Ideas.

Of the "Dear Colleague" letter's impact on the due process rights of those accused of sexual harassment or sexual assault, Epstein writes:

Secure in her invulnerable political position, Ms. Ali starts with the major premise that the procedures in question must afford "the complainant a prompt and equitable resolution" of the dispute. That framing of the issue gets her discussion off on the wrong foot, because the objective of any legal procedure is not to supply the complainant with that kind of protection, but at a minimum to ensure that both parties to the dispute receive fair treatment in the case.

Indeed, Epstein's article parallels many of the same arguments FIRE has been making for nearly a year now:

There is little doubt that if the OCR had decided to try sexual harassment cases under these conditions, its actions would be on a collision course with the fundamental requirements of procedural due process, which commands that "no person shall be deprived of life, liberty or property without due process of law." That provision, found in the Fifth Amendment, is obviously much more concerned with the exposed position of the defendant than the protected position of the complainant. The situation is more emphatic in the Sixth Amendment, which starts out as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State. . ." The Amendment also gives the accused the right to be "confronted with the witnesses against him."

[...]

The OCR concedes that the due process guarantees applies to all forms of state action, including its procedural diktats. But it nowhere explains why the protections under Title IX, all of which are imposed through administrative interpretation, rise to equal dignity with these unquestioned constitutional guarantees. The university sanctions could include suspension, expulsion, and loss of tuition.

Epstein's entire piece is worth your time, so be sure to read it today.

Permalink | E-mail comments | Posted by Azhar Majeed on February 10, 2012, at 3:32 PM

Towson University Should Not ‘Absolutely Want’ to be a ‘Yellow Light’ School

February 10, 2012

The Towerlight, a student newspaper at Maryland's Towson University, ran an article earlier this week on Towson's "yellow light" rating in FIRE's recent speech code report, Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation's Campuses. The article does a good job of explaining Towson's speech code rating, which could certainly be the subject of a thoroughly exhausting piece given that the university maintains no fewer than seven "yellow light" policies. As a public institution legally bound by the First Amendment, this is simply unacceptable.

Perhaps more noteworthy than that, though, are some of the statements made in the article by the Towson administration. These comments warrant a full response here.

The main issue relates to Towson's Policy on Time, Place, and Manner (.pdf), which states that "Students, Student Groups, faculty or staff planning Expressive Activity must contact the following offices in advance of any planned Expressive Activity: the Office of Campus Life (Students and Student groups); the Provost's Office (faculty); and the Office of the Vice President for Administration and Finance (staff)."

FIRE has written before about the limited reach of the "time, place, and manner" doctrine; it allows government restrictions on speech that are content-neutral, "are narrowly tailored to serve a significant governmental interest," and "leave open ample alternative channels for communication." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted). In contrast to this type of narrow restriction, Towson's policy bans any and all spontaneous speech on campus, requiring students, student groups, and faculty to contact a designated university office in advance of any expressive activity, whether that be silent leafleting or a campus rally or demonstration. This surely goes beyond the limited scope of the "time, place, and manner" rationale.

Yet, there is this from the Towerlight article:

Deb Moriarty, vice president for student affairs, said this is exactly where Towson University wants to be concerning their policy, and that the Time, Place and Manner policy doesn't solely regulate free speech.

"I'm sure FIRE wants us all to be green lights," she said. "We have a responsibility to the internal community to have a policy and help the community understand when it is appropriate to have freedom of expression and when it is not." 

First of all, yes, FIRE does want all universities to be green lights. Our favorite press releases to write are those congratulating and praising a school for revising the last of its speech codes and going green. But beyond that, "it is appropriate to have freedom of expression" on more than just those occasions when Towson feels like allowing it. This is especially true of an activity such as peacefully handing out flyers or other literature, a time-honored practice under the First Amendment that has little chance of actually disrupting the educational process or the functioning of the university, and that therefore should not require the prior approval of the administration. 

More from Moriarty in the Towerlight article:

According to Moriarty, there aren't any plans to change Time, Place and Manner, since the policy is working well.

"Time, Place and Manner's purpose is to create a structure so students can speak freely and have protected protest," Moriarty said. "The policy gives us an opportunity to support the students while not being disruptive. The policy has been working. We absolutely want to be a yellow light. We want to create the right type of opportunities for free speech and for any kind of activity involving that."

"We absolutely want to be a yellow light" is the kind of statement one never wants to hear from a university administrator, particularly when the institution has as many "yellow light" policies as Towson has. This is not a matter of one or two ambiguous policies needing a little clarification; again, there are currently seven speech codes at Towson, restricting student speech under such divergent rationales as harassment, verbal "[a]buse," "emotional distress," "non-offensive language," and, of course, "Time, Place, and Manner." There is a way to appropriately balance students' free speech rights with the university's other interests, but maintaining unconstitutional speech codes is not the way to do so, and the arrogance of Towson in deciding that the Bill of Rights is just not good enough for its students is breathtaking. Sadly, Moriarty's cavalier attitude toward Towson's "yellow light" rating is reminiscent of the University of North Carolina at Chapel Hill's apparent comfort with its own speech code rating, which we covered recently.

Towson owes it to its students to reform these policies, one by one, and to show a greater appreciation for First Amendment rights. FIRE would love to help with this policy revision, and we stand by ready to help at any time. Otherwise, any time a student opens his or her mouth or engages in expressive activity on Towson's campus, he or she risks censorship and punishment under one of these policies.  

Moreover, if an administrator decides to use these easily abused policies to censor Towson students, the university risks a First Amendment lawsuit. Is federal court really where Towson "wants to be"? If not, it would be wise to change these policies sooner rather than later.

Permalink | E-mail comments | Posted by Azhar Majeed on February 10, 2012, at 10:48 AM

Greg in ‘Huffington Post’ on Eleventh Circuit’s Important Message to University Administrators

February 9, 2012

FIRE President Greg Lukianoff weighs in today at The Huffington Post on the United States Court of Appeals for the Eleventh Circuit's important ruling in Barnes v. Zaccari. As we highlighted in on our press release yesterday, the Eleventh Circuit's unanimous decision affirms a lower court's denial of qualified immunity to former Valdosta State University (VSU) president Ronald M. Zaccari for violating former VSU student Hayden Barnes' due process rights.

Greg observes the following about the significance of this ruling:

The Eleventh Circuit's ruling is a clear sign that university presidents and administrators that choose to brazenly violate student rights will not be able to do so without real consequences. As a result of yesterday's ruling, Zaccari may be found personally liable for damages. That's the equivalent of a bright neon warning sign to all would-be violators of student rights: Think twice!

 Be sure to read Greg's full piece here. 

For more coverage of the decision, check out Frank LoMonte's article for the Student Press Law Center (SPLC). LoMonte's article echoes Greg's in noting what the ruling could mean for student rights going forward, and has quotes from Bob Corn-Revere, Barnes' attorney:

Barnes' attorney, Bob Corn-Revere of Davis Wright Tremaine LLP, said the court's ruling as to Zaccari was a significant victory.

"Quite often, administrators will count on qualified immunity to shield them when they try to claim they weren't exactly clear on the contours of the rights that protect the student," Corn-Revere said. "Here, the court made clear that (students) do have established rights and that administrators are not going to be able to hide behind the doctrine of qualified immunity."

Permalink | E-mail comments | Posted by Azhar Majeed on February 9, 2012, at 3:03 PM

Does the Supreme Court’s ‘Hosanna-Tabor’ Decision Apply to Religious Student Organizations?

February 9, 2012

Here at FIRE, we review a wide variety of legal material that never makes it onto The Torch. Court decisions come down all the time that are relevant but not directly related to our core mission (decisions about civil procedure or election law, for example). One such case that we have followed closely is the Supreme Court of the United States' recent unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. For a primer on this case, there is a useful battery of case materials and analysis over at SCOTUSBlog.

In Hosanna-Tabor, the Supreme Court held that the Establishment and Free Exercise Clauses of the First Amendment precluded courts from hearing employment discrimination suits brought by "ministers" against religious employers under the "ministerial exception."  

Some are citing Hosanna-Tabor as relevant to the context of religious student organizations who seek First Amendment protection from onerous "anti-discrimination" policies in managing their groups. In fact, in the ongoing freedom of association controversy at Vanderbilt University, students in a town hall meeting explicitly brought up Hosanna-Tabor at least twice. Vanderbilt administrators responded to both questions dismissively, indicating that in discussions with outside counsel, Vanderbilt found Hosanna-Tabor to be narrowly applicable to ministerial employees of religious organizations. Since the argument that Hosanna-Tabor is applicable to religious student organizations is floating around in the public arena, however, it is worth addressing here.

In one sense, the lawyers discussing the matter with Vanderbilt are correct. The ruling in Hosanna-Tabor has limited applicability to the case of (1) ministers, (2) of religious organizations, (3) in the employment discrimination context. Student leaders are not ministers: typically, ministers to religious student groups are older and affiliated with a religious body external to the university structure (a priest, for example, in the local parish). Furthermore, the relevant "employer" who would be the target of an employment suit is the university itself, which is usually not a religious organization. Finally, serving as a student leader or as a member of a group is not "employment" under the relevant statutes. Thus, a religious university dismissing a faculty member who is also a minister might be protected from suit under Hosanna-Tabor, but the case is not on-point for religious student groups seeking to to regulate their own groups. 

In this respect, it is a stretch to afford the Free Exercise protections outlined in Hosanna-Tabor to student organizations. Indeed, there is reason to worry if the case were applicable. Should a student be liable as an employer for failing to vote for someone (is this an adverse employment action)? Should courts be the ones to decide when a student group is genuinely religious, or when a student leader of a religious group is serving in a ministerial or purely administrative capacity? Do we really want all of this to end up in court?  Probably not.

But in another sense, the students at Vanderbilt have the right idea, too: Hosanna-Tabor stands for something more than its narrow holding. As the majority noted, "the First Amendment itself ... gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers." It is not hard to see, as some students at Vanderbilt do, the analogy to leaders of religious student organizations, who perform many of the same functions as ministers, and who might even be a minister in their religious hierarchy outside the university. As the Court put it, "the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission" is important. This is certainly true when it comes to the ability of student groups to associate around shared beliefs and choose the group's composition accordingly.

Justice Thomas explained in his concurrence that "[t]he question whether an employee is a minister is itself religious in nature, and the answer will vary widely." This is exactly correct. Part of FIRE's concern in the Vanderbilt case is that, in seeking to place limits on student freedom of association, the Vanderbilt administration is tacitly espousing and enforcing its own religion, imposing orthodoxy at the expense of religious liberty. Rather than ignoring Hosanna-Tabor, school administrators would do well to read the decision and carefully consider the rights and the beliefs of religious students on campus.

Permalink | E-mail comments | Posted by Andrew Kloster on February 9, 2012, at 1:50 PM

Minnesota Supreme Court Hears Oral Arguments in ‘Tatro,’ with Student Speech Rights at Stake

February 9, 2012

Yesterday, the Minnesota Supreme Court heard oral arguments in the case of Tatro v. University of Minnesota. As reported by The Chronicle of Higher Education, Tatro concerns the University of Minnesota's punishment of mortuary sciences student Amanda Tatro for off-campus comments she posted on Facebook that her school labeled as threatening. However, as FIRE argued in an amici curiae brief filed along with the Student Press Law Center (SPLC) before the Minnesota Supreme Court, Tatro's expression was clearly protected and non-threatening, and the implications of granting the universities the right to police such off-campus, online speech would be very damaging to student First Amendment rights. 

You can read much more about this important case for students' expressive rights, including an excellent piece by the SPLC's Frank LoMonte, Will's analysis of the faulty appellate court decision that prompted the appeal to the state supreme court, and of course today's coverage in the Chronicle.

Permalink | E-mail comments | Posted by Azhar Majeed on February 9, 2012, at 10:59 AM

Greg Takes On Proposed Arizona Law in 'The Huffington Post'

February 8, 2012

In his latest piece for The Huffington Post, FIRE President Greg Lukianoff criticizes a newly proposed Arizona law dictating that all educational institutions follow FCC regulations concerning "indecent speech." Greg argues that the law is not only "hilariously" unconstitutional, but also threatens the ability of schools to educate their students about controversial subjects and classic materials. Read his entire article here.

Permalink | E-mail comments | Posted by Bridget Sweeney on February 8, 2012, at 3:20 PM

Widener Settles Lawsuit Filed by Law Professor who was Punished for Protected Speech

February 8, 2012

For a year now, FIRE has been reporting on the case of wronged law professor Lawrence Connell, who was the target of a campaign spearheaded by Widener Law Dean Linda Ammons. Ammons sought Connell's termination and banishment from Widener mainly on the basis of Connell's use of hypothetical legal scenarios that used Ammons as a character (quite a common practice in law schools). Ammons also allegedly induced two students to file charges against Connell. (The law school even indemnified the students.) Connell was exonerated of the original charges but Widener kept pursuing him, bizarrely finding that Connell's efforts to defend himself constituted "retaliation."

Today, FIRE has learned from Connell's attorney, Thomas S. Neuberger, that his lawsuit against Widener University, Dean Ammons, and students Jennifer R. Perez and Nadege Tandoh has been resolved amicably and confidentially.

Neuberger's announcement says that Connell is no longer at Widener. I know that if I were Connell I wouldn't be too thrilled about sticking around Widener University School of Law while Linda Ammons was running it. Why Ammons is still running the law school is a question people should probably be asking Widener.

While Connell may be prevented by the terms of the settlement from continuing to comment on Ammons' tyrannical behavior in this ordeal, FIRE faces no such restrictions. We will continue to make sure the public remembers the many wrongs committed by the Widener Law administration against Lawrence Connell. Prospective law school students should think twice (or more) before sending their applications to Widener. 

Permalink | E-mail comments | Posted by Peter Bonilla on February 8, 2012, at 3:09 PM

Student Papers at UGA, Utah State on Schools’ ‘Red Light’ Ratings

February 8, 2012

Coverage of FIRE's most recent speech code report, Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation's Campuses, keeps rolling in. Recently, student newspapers at the University of Georgia (UGA) and Utah State University (USU) joined those campus outlets that have drawn attention to FIRE's review of their institution's policies on student speech.

At UGA, The Red & Black took note of the university's "red light" rating, interviewing FIRE's Samantha Harris:

"UGA received a ‘red light' rating mainly because of its email policy," said Samantha Harris, director of speech code research at FIRE. "It prohibits any profanity, obscenities or derogatory remarks in electronic mail messages. Given the volume of student communication that takes place over email, this policy seriously restricts protected student speech."

UGA's poor Spotlight rating is all the more cause for concern given the university's checkered past regarding free speech in practice. UGA has had a couple of memorable FIRE cases in recent years, and its "red light" email policy remains a constant threat to students' expressive rights.

Meanwhile, The Utah Statesman points out that one of USU's two "red light" policies is an unconstitutional civility policy. Once again, Samantha lends her analysis:

The FIRE website outlines several instances in which the USU handbook specifically interferes with students' rights. One example cited states: "All interactions with faculty members, staff members, and other students shall be conducted with courtesy, civility, decency and a concern for personal dignity."

[...]

Harris said there are often issues in which students become passionate, and people may rally.

"Those interactions may not always be civil or courteous," Harris said. "I think that's an important point for universities to understand. Universities are absolutely free to encourage - as much as they want - students to uphold certain values and to interact with others certain ways. The problem is when they cross that line into requiring it, and you can be punished if you are not civil or courteous."

Happily, though, it appears there is the possibility of policy reform at USU through the student government (ASUSU):

"Knowing that we are in the red, I, as student advocate, would love to see us in the green," said Jason Russel, ASUSU student advocate.

[S]tudents who are interested in changing the student handbook's current policies should talk to Russel or any other administrator, Russel said.

"If students want to change something, they can do it," Russel said. "If students come to us, we can change things, we can make things happen."

ASUSU also can find helpful resources for students from FIRE's Campus Freedom Network, including FIRE's Guides, Speakers Bureau, and activism ideas.

I hope the student newspaper coverage at UGA and USU spurs speech code reform at both schools. Our thanks to The Red & Black and The Utah Statesman for their efforts.

Permalink | E-mail comments | Posted by Azhar Majeed on February 8, 2012, at 2:09 PM