December 12, 2013
On Monday, FIRE and the Student Press Law Center (SPLC) filed a brief in the United States Court of Appeals for the Ninth Circuit as amici curiae (“friends of the court”), asking the appeals court to reverse the district court’s erroneous and dangerous decision in the case of Oyama v. University of Hawaii. The brief was prepared by noted First Amendment expert Eugene Volokh in conjunction with the University of California, Los Angeles School of Law’s First Amendment Amicus Brief Clinic.
The relevant facts are fairly straightforward. Mark Oyama was a student in the University of Hawaii’s (UH’s) teaching certification program, where he was required to complete a student teaching assignment. UH denied his application for a student teaching position, citing concerns about comments he made with respect to his personal views on students with disabilities and age-of-consent laws. Although Oyama was never accused of any actual misconduct, nor of expressing an intent to engage in misconduct, UH justified its denial of his application by claiming that his views were “not in alignment” with professional teaching standards.
Oyama filed a lawsuit against UH, claiming that the school’s denial of his student teaching application based on his personal views violated the First Amendment. In a troubling ruling, a federal district court judge rejected Oyama’s claims and held that UH’s denial of his student teaching application was an “academic judgment” and “reasonably related to a legitimate pedagogical purpose.”
The brief filed by FIRE and SPLC asks the Ninth Circuit to reverse the district court’s decision. As our brief argues, the district court applied the wrong legal standard in analyzing the First Amendment protection of student speech in higher education, and in doing so opened the door to broad, unconstitutional censorship of students at our nation’s colleges and universities.
In ruling that UH did not violate Oyama’s First Amendment rights, the district court relied on the Supreme Court’s holding in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which addressed the ability of a high school to regulate student speech in the context of school-sponsored activities, where the speech could reasonably be imputed to the school itself. However, as we have consistently pointed out, the application of Hazelwood to student speech in higher education is improper and conflicts with the broad First Amendment protections that the Supreme Court has held apply to college students. See, e.g., Healy v. James, 408 U.S. 169, 180 (1972) (“[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.”) (internal citation omitted). Be sure to visit the SPLC’s excellent “Cure Hazelwood” site for more information about the problems with Hazelwood’s application to college student speech.
Even if Hazelwood did apply to higher education, it would still be inapposite in this case, because Oyama was punished for speech that occurred in the context of his conversations with faculty members, which could not reasonably be interpreted to constitute the view of the institution itself. The brief explains:
But, in any event, Hazelwood rested on the theory that a high school student newspaper expressed the voice of the high school, and that therefore high school authorities had the power to restrict what that voice communicates. Hazelwood, 484 U.S. at 263-64. “[T]he standard . . . for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression.” Id. at 272-73. Here, Oyama’s views were clearly Oyama’s, and not the University’s.
Taken to its logical conclusion, the district court’s opinion would allow schools to institute extremely broad speech codes. If schools may punish speech merely by claiming that it does not comport with the prevailing norms of the particular profession or discipline, there is virtually no limit to what speech a student might be punished for:
If universities may dismiss students from educational programs on the grounds that the student’s views fail to comply with dominant professional norms, then most of these campus speech codes could be revived merely by being slightly reworded (for instance, on the theory that allegedly bigoted or otherwise offensive speech is contrary to professional norms). Indeed, if university student speech expressing calm, reasoned views on important public policy topics such as age of consent laws and disability education policy is stripped of First Amendment protection, then universities would have a virtually free hand in engaging in the viewpoint discrimination that the Supreme Court has long condemned. As the speech code cases show, even well-intentioned university administrators often face substantial pressure—from activists, legislators, other administrators, faculty, or students—to restrict student speech. The decision below would give administrators a roadmap to impose such restrictions.
While UH can discipline a student for actually violating conduct or ethical codes, its asserted interest in protecting professional norms from opposing opinions cannot survive scrutiny. Courts have consistently held that while professional licensing boards may impose and enforce ethical and conduct rules, they may not deny applicants simply because they have expressed opinions outside the mainstream. Nor can professional schools discipline students for holding controversial opinions in the absence of an actual violation of professional rules:
Indeed, as this Court recently held, even “a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine.” Pickup v. Brown, 728 F.3d 1042, 1053 (9th Cir. 2013). “[O]utside the doctor-patient relationship, doctors are constitutionally equivalent to soapbox orators and pamphleteers, and their speech receives robust protection under the First Amendment.” Id. at 1054. Likewise, teachers cannot be barred from the profession for publicly expressing heretical views about disability discrimination or the age of consent, or for expressing such views in conversations with colleagues or professors. And if professional licensing boards cannot exclude applicants based on their viewpoints being supposedly “out of alignment” with professional “standards,” then universities cannot exclude students on this basis, either.
The actions of UH are part of a disturbing trend of using “dispositions” to evaluate students’ commitment to certain beliefs or ideologies and thus their suitability for teaching. As we have argued in the past, the use of dispositions encourages unconstitutional viewpoint discrimination, punishing students merely for having unpopular opinions, even when there have been no performance-related issues with the student’s work. The purpose of student teaching programs is, properly, to evaluate a candidate’s aptitude and performance. Students like Oyama should be assessed based on actual teaching, rather than any speculation as to how they may perform because of the opinions they hold. When ideological litmus tests restrict teaching positions (and the ability to demonstrate one’s aptitude for teaching) to those holding “acceptable” beliefs, both classrooms and professions will suffer from the intolerable “pall of orthodoxy” warned of by the Supreme Court. See Keyishian v. Board of Regents of the University of New York, 385 U.S. 589, 603 (1967). Is it any wonder that students are increasingly unwilling and unable to think critically and challenge their own deeply-held beliefs when those charged with their education are not allowed to do so themselves?
Torch readers interested in the case can read the brief in its entirety here.
Image: University of Hawaii at Hilo sign - Panorimo
December 12, 2013
University of Alaska Fairbanks (UAF) independent student newspaper The Sun Star is being subjected to an investigation—again—after a faculty member who complained about the paper’s content appealed two separate findings clearing the newspaper of sexual harassment charges based on its content. Although the university has not formally disciplined the newspaper staff, the months-long and burdensome investigations of clearly protected speech are wearing down the newspaper’s editors and are likely to significantly chill future student speech.
The Fairbanks Daily News-Miner described the two articles that led to the complaints:
The first was a satirical article in the newspaper’s April Fools’ “Fun Star” issue and written about plans to build a vagina-shaped building on campus, a joke based on a previous article about a penis-shaped building. ...
The other article was a news story about abusive comments on the Facebook page “UAF confessions,” in which students can post comments, sometimes anonymously, on Facebook.
As examples, the Sun Star article included screenshots of the site, including one of a university student making a comment about punching a pregnant woman in the stomach. The student’s name is visible in the article because the comment was made using the student’s Facebook account.
According to the News-Miner, the UAF Faculty Senate asked the newspaper to redact student names from the latter article, arguing that those students were being singled out in a forum more permanent and public than Facebook. Sun Star editors refused to edit the article.
Sociology professor Sine Anahita filed two complaints alleging that the articles created a hostile environment on campus. Two university investigators looked into the allegations for several months, and in October, UAF’s Office of Diversity and Equal Opportunity produced a report comprising 22 pages (plus 62 pages of attachments) concluding that the newspaper’s articles were protected by the First Amendment and did not constitute hostile environment harassment. UAF Diversity and Equal Opportunity director Mae Marsh wrote after her investigation: “I have determined that the alleged act(s) of discrimination are constitutionally protected and also that they do not meet the definition of sexual harassment.” The University of Alaska system’s Labor Employee Relations Coordinator Jennifer McConnel included this statement in her report, too, coming to the same conclusion.
In appealing that finding, Anahita claimed that the report had “factual errors and misattributions and faulty process.” Following Anahita’s appeal, an external reviewer will now begin yet another investigation.
But absent a claim that, in fact, the newspaper published much more than just the satire and screenshots described above (and no such allegations have been reported), this appeal cannot properly end in a finding of hostile environment sexual harassment. According to the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 629 (1999), student-on-student harassment is discriminatory conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
With respect to the first article, The Sun Star is hardly alone in its analysis of buildings—real or fake—that look like vaginas (or, perhaps more accurately, vulvas), and it would be very difficult to argue that such an article is so objectively offensive that it would deprive a reasonable student of his or her educational benefit. Davis sets a precise threshold, and if The Sun Star’s article reaches it, so too would innumerable college publications nationwide.
With respect to the second article, The Sun Star reproduced another student’s post as it appeared on Facebook. It does not comport with the First Amendment or with common sense to say that all public speech that might be embarrassing to the speaker must never be made more public than the forum in which it was originally shared. To impose this restriction would severely hinder journalists’ abilities to shed light on matters of public concern—as, indeed, The Sun Star staff was attempting to do in this case.
Lakeidra Chavis, current editor-in-chief and writer of the satirical article in question, wrote for The Sun Star in September to share details of the case. Chavis emphasized the importance of protecting journalists’ rights to report the truth—“not just about the issues the university sees fit”—as well as satire. According to Chavis, the repercussions of the students’ protected speech didn’t end with the investigations. After finding out that a class for which she was registered was being taught by the complaining professor, the Dean of Students “advised [her] to take the online section of the course.” Chavis says in her editorial, “I ended up dropping the class, despite it being the last elective I need for my degree.”
This is an absurd and depressing result for a student journalist at a public university bound by the First Amendment. As Chavis notes, the investigation as a whole contributes to an atmosphere that encourages self-censorship:
Many students are hesitant to speak out against the university because they are either planning on attending graduate school, applying for a job or working for a department and are afraid of retaliation.
Federal courts have concluded that investigations into protected speech can constitute violations of the First Amendment in and of themselves. In Sweezy v. New Hampshire, 354 U.S. 234, 245, 248 (1957), the Supreme Court noted that government investigations “are capable of encroaching upon the constitutional liberties of individuals” and have an “inhibiting effect in the flow of democratic expression.” The Supreme Court added in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963), that “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation” may also violate the First Amendment.
In White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit—the opinions of which are binding on UAF—held that an investigation into protected expression chilled speech and was therefore a violation of the First Amendment. And in Levin v. Harleston, 966 F.2d 85 (2nd Cir. 1992), the Second Circuit upheld a trial court’s finding that a university president’s creation of a committee to investigate protected speech by a professor implied the possibility of disciplinary action, and thus violated the First Amendment.
For an example from FIRE’s case archives of the problems presented by protracted investigations of protected speech, recall that FIRE helped secure a victory for students at San Francisco State University (SFSU) after that institution’s College Republicans were investigated for months for exercising their First Amendment rights. During an anti-terrorism rally in October 2006, members of the group stepped on Hezbollah and Hamas flags. Because the flags displayed the word “Allah,” another student filed a complaint that the College Republicans engaged in “attempts to incite violence and create a hostile environment” and “actions of incivility.” Despite letters from FIRE explaining that the students’ speech was protected political protest, it took until March 2007 for the investigation to finally end with a unanimous finding for the College Republicans by the Student Organization Hearing Panel. The incident led to a lawsuit coordinated by FIRE and the Alliance Defending Freedom that ultimately resulted in an injunction preventing SFSU from enforcing unconstitutional speech codes.
Back to UAF. Worryingly, we were unable to access either article (as linked from SPLC) on the Sun Star website today. This may be a technical glitch, but it would obviously be deeply troubling if the paper has been forced to take them down.
In sum, this is a remarkable—and regrettable—result from what amounts to a humorous reflection of a common observation and the reproduction of an already-public post. At a public college like UAF, both articles are protected by the First Amendment, and subjecting students to several semesters of investigations for this speech is unacceptable. UAF should remind the school community of the First Amendment’s broad protections and take whatever steps in its power to end this new investigation swiftly. As former University of Alaska President Mark Hamilton wrote in 2001 following the investigation of a creative writing professor for the content of her work, further investigation is incompatible with the First Amendment:
“Noting that, for example, ‘The University supports the right of free speech, but we intend to check into this matter,’ or ‘The University supports the right of free speech, but I have asked Dean X or Provost Y to investigate the circumstances,’ is unacceptable. There is nothing to ‘check into,’ nothing ‘to investigate.’”
Exactly. UAF can’t undo the two investigations that the newspaper has had to endure but it can—and should—stop the third.
Image: “Newspaper stack” - Shutterstock
December 12, 2013
A little over a year ago, we reported the decision of the United States Court of Appeals for the Ninth Circuit allowing former doctoral candidate Monica Emeldi to proceed to trial in her sex discrimination lawsuit against the University of Oregon (UO). The trial finally began last Monday, and less than 48 hours later, the federal district court entered judgment for UO, finding that Emeldi had not sufficiently proven her claims of retaliation against the school.
Emeldi filed her Title IX lawsuit against UO in 2008, after Dr. Robert Horner resigned as the chair of her dissertation committee and she was unable to find a replacement, rendering her unable to complete further work on her degree. Her lawsuit claimed that Dr. Horner’s resignation and her subsequent inability to procure a replacement committee chair constituted unlawful retaliation for her previous complaints about perceived unequal treatment of women in her department.
UO disputed Emeldi’s theory and asserted that separate, unrelated academic issues were the source of her troubles. The university pointed to, among other things, documented irreconcilable academic differences between Emeldi and Dr. Horner with respect to her research goals, as well as Emeldi’s failure to reach out to all faculty members who might serve as a replacement, including her original adviser and committee chair who had since returned from sabbatical.
After the parties completed discovery, UO asked the court to grant summary judgment in its favor, arguing that Emeldi’s only evidence of retaliation was her own “fanciful” opinion, and that substantial evidence supported the conclusion that independent academic judgments were the cause of her inability to make further progress on her degree. The district court agreed and granted judgment for UO, but the Ninth Circuit later reversed and held that Emeldi was entitled to present her case to a jury. In reaching this conclusion, the federal appellate court found that Emeldi had shown sufficient evidence that her discrimination complaints and Dr. Horner’s resignation as her committee chair were “not completely unrelated.” The Ninth Circuit did not require her to show that the resignation occurred because of her discrimination complaints even after UO presented a non-discriminatory reason for Emeldi’s difficulties.
Seizing on the negative implications for academic freedom, Ninth Circuit Chief Judge Alex Kozinski issued a scathing dissent to the Ninth Circuit’s refusal to rehear the case en banc:
[The decision] jeopardizes academic freedom by making it far too easy for students to bring retaliation claims against their professors. ... Defendants will go straight to trial or their checkbooks—because summary judgment will be out of reach in the Ninth Circuit.
If this ill-considered precedent stands, professors will have to think twice before giving honest evaluations of their students for fear that disgruntled students may haul them into court. This is a loss for professors and students and for society, which depends on their creative ferment.
After the Supreme Court denied review of the Ninth Circuit decision, Emeldi’s case finally went to trial last Monday. After Emeldi finished presenting her case, UO moved for a directed verdict in its favor, arguing that Emeldi had failed to produce legally sufficient evidence from which a jury could find that the university retaliated against her for complaining of sex discrimination. The district court agreed and entered judgment for UO.
Assuming Emeldi does not appeal the district court’s judgment, this case is over. But the dangers warned of by Judge Kozinski have not abated. If a disgruntled student can force a trial (and a prolonged legal process) by showing only that negative academic results occurred close in time to some protected activity without any evidence of causation beyond speculation, students will have significant incentives to attempt to extract favorable results by threatening litigation.
And as Judge Kozinski correctly noted, faculty members might think twice before providing honest evaluations of students’ work, and universities might be forced either to capitulate or face protracted and costly litigation. If this came to pass, students would suffer from professors’ reticence to provide legitimate critiques of their work—as would the academy and society at large, from the diminished quality of scholarship produced as a result.
Image: Autzen Stadium, University of Oregon - Wikimedia Commons
December 11, 2013
FIRE announces its Speech Code of the Month for December 2013: Virginia State University.
According to Virginia State’s Student Code of Conduct (PDF), “[s]tudents shall not injure, harass, threaten, offend, or degrade a member of the University community” (emphasis added). Any violation of this provision “is subject to disciplinary sanctions including, but not limited to warning, probation, loss of privileges, fines, restitution, residence hall suspension, residence hall expulsion, Virginia State University suspension, and Virginia State University expulsion.”
So here we have a public university, legally bound by the First Amendment, threatening to expel students if they “offend” another student on campus. Do you support affirmative action, or gay marriage, or the right to an abortion? Do you perhaps oppose them? At Virginia State, it doesn’t matter, since chances are someone will be offended no matter what opinion you hold.
This result is such a clear violation of decades of legal precedent that it is hard to imagine anyone signing off on such a policy. As the U.S. Supreme Court has stated, “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). The Supreme Court has even addressed this issue specifically with respect to public colleges and universities, ruling 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.’” Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).
These rulings could not be clearer, yet Virginia State is prohibiting exactly what the Court has held sacrosanct: the right to express one’s opinions even if those opinions offend others. This policy is so blatantly unconstitutional that there truly is not much more to say about it, other than that the university must revise it immediately. For this reason, Virginia State University is our December 2013 Speech Code of the Month.
If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in free speech, consider joining FIRE’s Campus Freedom Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses. You can also add FIRE’s Speech Code of the Month widget to your blog or website and help shed some much-needed sunlight on these repressive policies.
December 10, 2013
The Daily Orange reports that in an unfortunate incident, a number of buildings at Syracuse University were vandalized with spray paint on Sunday night. It’s not yet clear who is behind the vandalism.
What makes this incident noteworthy for FIRE is the content of one of the vandal’s (or vandals’) messages. Scrawled on the wall of the S.I. Newhouse School of Public Communications, immediately below the oversized text of the First Amendment etched into its windows, appear the words:
#1 in communication
LAST in free speech
Indeed, Syracuse has made more than its fair share of free speech blunders in recent years, despite being home to a renowned journalism school as well as the Tully Center for Free Speech and despite its professed commitment to “freedom of discussion” and the “expression of dissent.” Syracuse has drawn criticism from FIRE and other free speech advocates for, among other things, threatening to censor “offensive” Halloween costumes, expelling a student for complaining on Facebook about a racially charged comment made by a community leader, and conducting an inexorable witch hunt against the author of an anonymous blog satirizing life in law school. Most recently, we highlighted Syracuse’s illiberal communications policy, which prohibits use of its computer systems to send “offensive messages.” As a result of these transgressions, Syracuse has been noted as one of the worst offenders on our list of the 12 Worst Colleges For Free Speech in both 2011 and 2012.
Yet, Syracuse’s depressing free speech record aside, it is important to make one thing clear: Vandalism is not free speech. It is a crime. Free speech does not give anyone license to destroy or deface the property of others.
It is disappointing that these vandals thought it appropriate to make a statement about free speech at Syracuse in such a manner. Vandalism does nothing to advance the cause of free speech at Syracuse. If they wished to speak out against Syracuse’s history of free speech transgressions, there are ample legitimate means by which they could have done so. Others in the Syracuse community have done just that, for instance, by writing articles in order to raise awareness about Syracuse’s poor record.
Those who are truly interested in learning about their rights and how to properly (and legally) defend free speech on campus are welcome to download FIRE’s Guides, to join our Campus Freedom Network, and to help raise awareness and work with administrators to protect student rights on campus. As always, FIRE stands ready to help students seeking to advocate for free speech through intelligent discourse rather than criminal activity.
Image: Vandalism at Syracuse University - The Daily Orange
December 10, 2013
Free speech is important on campus. Tell us why, and you could win a $10,000 college scholarship! High school juniors and seniors planning on attending college are invited to enter FIRE’s essay contest. Winners will receive one of nine college scholarships worth $10,000, $5,000, $1,000, or $500. But be sure to enter your essay soon, because time is running out! All essays are due by January 1, 2014.
Do you know a high school junior or senior? Then send them this link—thefire.org/contest—and encourage them to apply!
To enter, watch two FIRE videos—Silencing U: Five Outrageous Cases of Campus Censorship and What Every Student Should Know Before Starting College—and write an essay answering the question, “Why is free speech important at our nation’s colleges and universities?”
Image: “Typing Hands on Keyboard” - Shutterstock
December 10, 2013
As Torch readers and followers of the Student Press Law Center’s (SPLC’s) work know, colleges and universities often cite the Family Educational Rights and Privacy Act (FERPA) when they refuse to disclose official records, even when those records could be easily redacted in order to protect students’ privacy and disclosed in compliance with FERPA. Last week, a Franklin County, Kentucky, circuit court judge made that card harder to play when he fined National College $126,000—$1,000 for each day it refused to disclose records subpoenaed by Kentucky attorney general Jack Conway.
The SPLC reported last week:
The attorney general’s office is seeking National’s records as part of an ongoing lawsuit that alleges National made deceptive advertising claims inflating the successful job-placement rate of its graduates. The college has been fighting Conway’s demand for records for nearly three years.
Having lost in court at every step, the college finally played “the FERPA card,” claiming that the documents Conway sought could not be produced without violating the Family Educational Rights and Privacy Act, which requires colleges to safeguard the confidentiality of student education records.
As we discussed here on The Torch last month, schools may not simply claim that disclosing official records would violate FERPA in order to avoid acquiescing to records requests. Where students’ identifying information is contained in a requested record, schools can simply redact or segregate that information in order to protect students’ privacy, and then comply with the request.
In the case of National College, two additional factors contributed to the state judge’s finding that National’s FERPA defense was “meritless.” As SPLC explained:
FERPA allows colleges to produce student records in response to a “lawfully issued subpoena.” ... And … the records were protected against public re-disclosure under a court-issued protective order, so there was no risk that student information would be distributed beyond the AG’s investigative team.
Student privacy is important, but this is a fact pattern that would almost certainly earn “three Arne Duncans” on SPLC’s FERPA Fact blog for the records being “not protected by FERPA at all.” Of course, if National really wanted to do the right thing and not just conceal evidence that might point to its wrongdoing, it could have asked Department of Education Secretary Duncan himself what the appropriate course of action was.
Time will tell if the hefty fine will successfully send a message to other schools that FERPA is not a shield that can be used to protect virtually any damaging or embarrassing information from disclosure merely by invoking nebulous concerns over “privacy.” In the meantime, FIRE is glad to see this good result for students and other citizens interested in the lawsuit against National College.
Image: “Gavel in Courtroom” - Shutterstock
December 9, 2013
Hampshire College in western Massachusetts raised eyebrows this Halloween when it canceled a campus performance by an Afrobeat band, Shokazoba, after students complained that the band was engaged in hurtful “cultural appropriation” because its members were insufficiently dark-skinned. It so pained me to have to read stories like that in 2013 that I took to the pages of The Boston Herald to draw attention to this nigh-unbelievable situation.
Thankfully, FIRE is not the only organization that was concerned about making comfort (in this case, to the extent that it creates de facto racial requirements) a necessity for engaging in expression on Hampshire’s campus. Fred Contrada of Springfield, Massachusetts’ The Republican noted late last week that the ACLU of Massachusetts would also like to hear from Hampshire College that this kind of censorship is not acceptable. William Newman, director of the ACLU of Massachusetts’ Western Regional office, penned a letter to Hampshire College President Jonathan Lash, writing:
Invocation of “I am fearful” or “I am uncomfortable” or “cultural appropriation”, as shibboleths that warrant censorship, results improperly and dangerously in the prohibition of artistic (and other) expression. That is the antithesis of freedom of speech, expression and inquiry which are at the core of the First Amendment and should constitute foundational principles of a liberal arts institution.
Well said. If President Lash wishes Hampshire College to be taken seriously as a liberal arts institution, he’d be wise to respond by condemning censorship on campus, regardless of whether students are offended by “cultural appropriation” or not.
Image: Shokazoba promotional photo - Shokazoba.com
December 9, 2013
Over the weekend, Wall Street Journal editorial board member James Taranto penned a piece about one Auburn University student’s treatment by the campus judiciary following another student’s allegation that he committed sexual assault.
Joshua Strange faced two separate systems. In the criminal court system, a grand jury failed even to find probable cause to prosecute him, despite the fact that probable cause is a very low bar to pass. Yet in the campus court system, using the same information available to the grand jury, the school found Strange guilty under the “preponderance of evidence” evidentiary standard. The finding resulted in Strange’s expulsion from Auburn.
Although Taranto’s piece tells the story of just one student’s dealings with campus courts, longtime Torch readers know that many of the due process issues Strange faced are nonetheless illustrative of a wider problem with campus justice relating to sexual misconduct. As FIRE’s own Robert Shibley told Taranto, Strange’s case is unsurprising given that in the campus judiciary, “[t]he incentives are pointing toward findings of guilt, not accurate findings."
Indeed, these problems with due process following sexual misconduct allegations on campus are so ubiquitous, some students convicted within these campus environments and under these rules are suing their schools for allegedly violating their rights.
For instance, just last Thursday, a student at Kenyon College in Ohio filed a lawsuit against his school, claiming among other things that “his accuser destroyed evidence relevant to the case, and alleg[ing] that those actions were taken ‘with the aid and encouragement of [the sexual misconduct advisor], and at her direction.’” FIRE will be following the case, which was filed in Knox County Common Pleas Court in Ohio.
Meanwhile, head over to the WSJ to check out Taranto’s full story.
December 6, 2013
Last month, the American Association of University Professors drafted a report reaffirming its conclusions from a 2004 report that electronic communications should be governed by the same principles of academic freedom as expression in traditional media. November’s report acknowledges that even in the past nine years, technology has advanced significantly in ways that have “potentially profound implications for both privacy and free expression.” But as the AAUP writes, the overriding principle articulated in its 2004 report still applies:
Academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater extent in electronic format than they are in print, save for the most unusual situation where the very nature of the medium itself might warrant unusual restrictions—and even then only to the extent that such differences demand exceptions or variations.
Though advocates like the AAUP and FIRE may take this idea for granted, the report is a very helpful reminder in light of recent controversies involving online speech by faculty members. University of Kansas professor David Guth, for example, was suspended from teaching in September for a controversial remark he posted on Twitter. And in November, Chicago State University demanded the removal of an opinion blog maintained by a group of professors.
In light of the increasing use of the internet and new media platforms, the AAUP advises both faculty and administrators to be aware of changing technology and its repercussions, but also to keep in mind the importance of fundamental rights. For example, in recommending that colleges develop policies on social media use, the AAUP’s report emphasizes that “[a]ny such policy must recognize that social media can be used to make extramural utterances, which are protected under principles of academic freedom.” FIRE strongly agrees.
Read the report in full on the AAUP’s website.
Image: “Typing Hands” - Shutterstock