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Peter Bonilla Speaks into the PolicyMic

May 21, 2012

FIRE's Peter Bonilla has a piece over at PolicyMic discussing the recent firing of The Chronicle of Higher Education blogger Naomi Schaefer Riley. Riley inspired controversy with her contention that a selection of Ph.D. dissertations in black studies indicated that the discipline was not up to general academic standards. Describing the way academia all too often handles dissent, Peter has this to say:  

The many who supported Riley's firing may think we've all been done a favor by taking away one of Riley's forums. We haven't. By granting the protesters' wishes, the Chronicle has condescended to its readers and, for our college students, watered that weed of a notion that we should never have to confront ideas we dislike.

Check it out!

Permalink | E-mail comments | Posted by Andrew Kloster on May 21, 2012, at 12:51 PM

‘Stanford Review’ Questions University’s Political Speech Policy

May 21, 2012

Last week, Gideon Weiler of student newspaper The Stanford Review penned an article criticizing Stanford University's policy governing "political activities." Weiler wrote:  

Stanford University has an ambiguous set of policies regarding student political activism on campus.

Students running for public office, for example, are not allowed to use campus resources for their campaign efforts. As a result, Stanford forbids students from using Zimbra email accounts to send campaign related messages.

University regulations make it that much more challenging for student politicians to succeed. It is hard enough as it is, for students such as Roman Larson, who ran for his district's school board in Wisconsin, or Michael Tubbs, who is running for city council in Stockton, to get elected so young. 

Weiler wondered why Stanford's policy hadn't caught our interest here at FIRE. We're happy to explain our take on the policy—and as the election season hits its stride, it's worth revisiting our Policy Statement on Political Activity on Campus, updated for the 2012 races. 

First, let's look at Stanford's policy. Political activity at Stanford is governed by Administrative Guide Memo 15.1 (PDF). Here's the summary: 

While all members of the University community are naturally free to express their political opinions and engage in political activities to whatever extent they wish, it is very important that they do so only in their individual capacities and avoid even the appearance that they are speaking or acting for the University in political matters.

This isn't concerning to us here at FIRE for two reasons. First, it makes clear that students and faculty enjoy full freedom to engage in political expression. Second, it's an accurate expression of Stanford's obligations as a 501(c)(3) organization. As we write in our Policy Statement: 

Despite the seeming severity of the restrictions on political activity at private colleges and universities imposed by the requirements of section 501(c)(3), however, it is extremely important to note that these prohibitions apply to the institution itself and those reasonably perceived to be speaking on its behalf, not to individual students, faculty, or staff engaged in clearly individual, unaffiliated activity. In a 1994 statement, the IRS made clear that "[i]n order to constitute participation or intervention in a political campaign ... the political activity must be that of the college or university and not the individual activity of its faculty, staff or students."

Further, we explain that 

Students, student groups, and faculty members do not endanger the 501(c)(3) status of private colleges and universities by engaging in partisan political speech when such speech is clearly separate and distinct from the institution's views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, or to faculty who do not hold a position as an administrator or department head.

So Stanford's summary is generally unproblematic, although I'd prefer that it made clear that students can "speak in their individual capacities" as part of a student group without raising 501(c)(3) problems, as well. 

Next, let's look at the specific language of Stanford's policy. The relevant part for our interests, Section 2(a)(4), states:   

No person supporting candidates for public office or engaging in other political activities may use University space or facilities or receive University support, except in the limited ways described in section 3.a.

And here's Section (3)(a) in full: 

3. PERMISSIBLE POLITICAL ACTIVITIES

a. In General — As noted above, the federal, state, and local laws which limit the partisan political activities that can take place in University facilities and with University support in no way inhibit the expression of personal political views by any individual in the University community. Nor do they forbid faculty, students, or staff from joining with others in support of candidates for office or in furtherance of political causes. There is no restriction on discussion of political issues or teaching of political techniques. Academic endeavors which address public policy issues are in no way affected. 

Because the University encourages freedom of expression, political activities which do not reasonably imply University involvement or identification may be undertaken so long as regular University procedures are followed for use of facilities. Examples of permissible activities are:

1) Use of areas, such as White Plaza, for tables, speeches, and similar activities.

2) Use of auditoriums for speeches by political candidates, but subject to rules of the Internal Revenue Service, the Federal Election Commission, and the California Fair Political Practices Commission, and other applicable laws. Arrangements must be made with University Events & Services. (See also Guide Memo 82.1, Public Events, for more information.)

To reiterate, because tax and political compliance laws impose restrictions, and even prohibitions, on certain political activities and on the use of buildings and equipment at a non-profit institution such as the University, any such activities must be in compliance with these legal requirements. 

Individuals taking political positions for themselves or groups with which they are associated, but not as representatives of the University, should clearly indicate, by words and actions, that their positions are not those of the University and are not being taken in an official capacity on behalf of the University. 

As written, Stanford's policy does a commendable job of balancing the university's obligation to protect political expression with the need to avoid engaging in prohibited institutional political activity prohibited by the tax code. 

So what about The Stanford Review's concern about students running for public office being forbidden from using their Stanford email? Stanford's policy states that "University services, such as Interdepartmental Mail; equipment, such as duplicating machines, computers, and telephones; and supplies should not be used for partisan political purposes." In other words, students running for political office can't conduct campaign business from their stanford.edu email account. Here, Stanford is trying to avoid the appearance of an institutional endorsement for a particular candidate that would arguably be implied by the use of the Stanford account. I think that's fair enough as a good-faith effort to comply with IRS regulations.  

The Stanford Review argues that when it comes to what constitutes "partisan political purposes," the line isn't always clear:  

Second, the definition of political activism seems overly fuzzy. Stanford can prohibit students from sending out emails if they are running for office, but not if they are organizing a meeting with expressly political purposes. For example, groups such as Stanford Dems, SPER (Students for Palestinian Equal Rights), and SIA (Stanford Israel Alliance) routinely use Zimbra to coordinate events and express political convictions.

Let's look back at the policy. Stanford defines "partisan political purposes" as activities "in support of or opposition to any candidate for elective public office." So, in application, The Stanford Review is right to note that Stanford is on some level engaging in a line-drawing exercise. When it comes to students running for elected office using their Stanford email accounts to run their campaign, the university has determined that this use of resources comes too close to the appearance of an institutional endorsement, but political student groups using their email accounts to discuss candidates or set up meetings is unproblematic.  

While this line-drawing may be understandably frustrating to The Stanford Review, it reflects to a significant extent the IRS's attempt to incorporate an element of common sense into its reviews of institutional compliance with the tax code. As we explain in our Policy Statement: 

Whether or not a 501(c)(3) organization has engaged in prohibited political activity is an ad hoc determination contingent upon examination of "all of the facts and circumstances of each case." However, in the campus context, the IRS has interpreted the restriction on political activity differently in light of the educational mission of colleges and universities, allowing certain activities (such as a political science class that requires students to work on a campaign, as long as the student, not the instructor, is allowed to choose the campaign; or a political editorial in favor of a candidate published in a student newspaper) that would otherwise likely constitute prohibited activity.

In other words, the IRS is trying to ensure that universities can allow students to engage in political speech without threatening their non-profit exemption, while also making sure that candidates for office don't unfairly benefit from the institutional involvement of universities in the campaign. While there's no bright line, common sense is a good guide: A candidate running for office using her Stanford email account for campaigning is too close for comfort, but students talking about their political preferences over email is part of the daily life of the university and doesn't suggest institutional endorsement. It can certainly be a tricky line to discern, but I don't think Stanford has unfairly or unreasonably cracked down on student political expression in this instance by disallowing candidates from using their university email in their campaign. 

Be sure to check out our Policy Statement in full as election season heats up. 

Permalink | E-mail comments | Posted by William Creeley on May 21, 2012, at 10:41 AM

Free Speech Lawsuit at Purdue-Calumet Hits Fox News, Associated Press

May 18, 2012

Yesterday, the media began to pick up the lawsuit filed in Indiana last week by a Purdue University Calumet professor who had generated controversy by criticizing Muslims on Facebook. As his lawsuit points out, Professor Maurice Eisenstein was cleared of nine complaints after a months-long investigation only to be found guilty of "retaliation," when really it was his own colleagues who had ganged up against him to shut him up. FIRE has been advocating for Eisenstein since January. 

The case was covered this afternoon by Mike Jaccarino at FoxNews.com: 

"When you investigate free speech, you chill free speech," Eisenstein said. "How am I supposed to do my job without free speech. I've changed. Every time I go into a classroom, I look around and wonder who will complain about what I say."

Eisenstein enlisted the Foundation for Individual Rights in Education (FIRE) in bringing his suit against the Big Ten school. 

Information from FIRE's press release also appeared in an Associated Press article by Charles Wilson as well as online in USA TODAY by John Bacon, in an article by Abigail Rubenstein for Law360 (a news source for lawyers), and in a piece by Dennis Carter for eCampus News. 

Most of the media so far (including Fox News) have quoted FIRE President Greg Lukianoff:

This is not the first time and it won't be the last time we will see a university punish a student or professor for constitutionally protected speech on Facebook. Professors at public universities should not have to go to court to defend their free speech rights. 

In addition, Eisenstein's lawyer, Edward W. Hearn of Johnson & Bell, Ltd., told Law360:

We are asking for an award of damages because this investigation dragged on for many, many months and the individual named defendants conspired to basically shut him up, which violates his civil rights.

FIRE will keep you informed as new information comes in.

Permalink | E-mail comments | Posted by Adam Kissel on May 18, 2012, at 3:04 PM

Don’t Film Me, Bro!

May 18, 2012

The Civil Rights Division of the U.S. Department of Justice issued a guidance letter this week finding a First Amendment right to record police engaged in their official duties. Professor Eugene Volokh of UCLA School of Law picks up on this over at the Volokh Conspiracy.

The most recent case clarifying this First Amendment right is ACLU v. Alvarez, issued this month by the United States Court of Appeals for the Seventh Circuit. In Alvarez, the Seventh Circuit held that "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected ...." (Emphasis added.) 

These First Amendment protections for recording police officers apply on university campuses as well. In fact, in an incident at University of Massachusetts Lowell last year, a campus police officer attempted to stop a student from recording a campus police response to an altercation outside campus apartments. While that police officer has apparently been disciplined, some universities still retain policies that might allow them to punish students for exercising their First Amendment right to record police officers. 

For example, a number of public universities, such as Minnesota State University, prohibit "[a]ny unauthorized use of electronic or other devices to make an audio or video record of any person while on University premises without his/her prior knowledge, or without his/her effective consent when such a recording is likely to cause injury or distress." Insofar as these policies require either prior authorization or consent to record police officers on campus, they are impermissible speech restrictions, contrary to the First Amendment and contrary to the policy of the Department of Justice.

Permalink | E-mail comments | Posted by Andrew Kloster on May 18, 2012, at 12:07 PM

Kissel to Georgetown: Honor Commitment to Free Speech

May 17, 2012

FIRE Vice President of Programs Adam Kissel comments on a commencement controversy at Georgetown University in The Huffington Post today, arguing that the university should honor its commitment to free speech. Adam contrasts Georgetown's laudable decision to stick by its promises of free expression in allowing Secretary of the U.S. Department of Health and Human Services Kathleen Sebelius to speak at commencement with the university's past failure to provide equal treatment to pro-choice student group H*yas for Choice. As Adam notes, Georgetown's guarantee of freedom of expression cannot be selectively applied.

Permalink | E-mail comments | Posted by William Creeley on May 17, 2012, at 4:38 PM

House VAWA Includes Millions for Controversial ‘Campus Safety’ Center

May 17, 2012

WASHINGTON, May 17, 2012—Yesterday, the U.S. House of Representatives passed its version of the Violence Against Women Reauthorization Act of 2012 (VAWA), which includes millions of dollars in federal funding to create a "National Center for Campus Public Safety." The proposed Center raises serious concerns for students, faculty, colleges and universities, taxpayers, and campus rights advocates. As the Senate and House versions of VAWA appear poised to be reconciled in conference committee, the Foundation for Individual Rights in Education (FIRE) is urging Congress to reexamine support for the Center.  

"While some aspects of both the House and Senate bills preserve due process protections for students," said FIRE President Greg Lukianoff, "the new Center risks threatening fundamental civil liberties both on and off campus."

The Center, which would be funded by $2.75 million in taxpayer funds annually from 2013 to 2016, would promulgate "policies, procedures, and best practices relevant to campus public safety," including "effective behavioral threat assessment and management models," among other aims. However well-intentioned those aims might be, FIRE's years of experience defending college student and faculty rights demonstrate that "threat assessment" programs often abuse their power by monitoring, censoring, and punishing the peaceful speech of students and faculty members.  

In FIRE's experience, campus threat assessment models often seek to create a "surveillance university" by advocating increased monitoring, reporting, and database recording of student and faculty behavior both on and off campus. One prominent threat assessment organization's model even identifies "harmful debate" and "wearing concealing clothing, such as hoodies," as risk factors worth monitoring. By endorsing similar models, the Center would likely extend university jurisdiction in unprecedented ways, requiring still more campus bureaucracy and raising college costs. 

In the fall of 2011, for example, a theater professor at the University of Wisconsin-Stout was censored twice, reported to the "threat assessment team," and threatened with criminal charges because of satirical postings on his office door, including a quote from the science-fiction television series Firefly.  

Similarly, former Valdosta State University student Hayden Barnes was expelled without a hearing after the university's president concluded that a cut-and-paste collage Barnes had posted on Facebook, protesting proposed campus parking garages, presented a "clear and present danger" to the campus. Barnes' ordeal began in 2007, and this past February, the United States Court of Appeals for the Eleventh Circuit affirmed a district court's finding that the then-president of the university could be held personally liable for violating Barnes' constitutional right to due process. 

Additionally, colleges and universities that decline to adopt the practices advocated by the Center might find themselves exposed to increased liability in suits for damages. Conversely, risk management lawyers operating expensive training programs for universities seeking to avoid liability would prosper—at taxpayer cost. Because of the threat that the Center could pose to civil liberties on campus, it is troubling that its creation has been inserted into VAWA without the input of the House Education and the Workforce Committee and without the input of the higher education community.

FIRE takes no position on the vast majority of VAWA. In April, the United States Senate made bipartisan progress on college student rights by passing its version of VAWA, which altered language in the final bill that might have required colleges and universities to employ our nation's weakest standard of proof in adjudicating allegations of campus sexual misconduct. While FIRE enthusiastically welcomes that change, FIRE continues to be concerned about the Senate bill's requirement that colleges maintain "procedures for the accused and the victim to appeal the results of the institutional disciplinary proceeding." (Emphasis added.) The requirement contradicts the principle behind the Fifth Amendment's prohibition on "double jeopardy," whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended in either acquittal or conviction. The House version of VAWA preserves due process protections for students by omitting such a provision.  

"When it comes to campus rights, there are good and bad elements to both versions of the VAWA Reauthorization Act," said FIRE Legislative and Policy Director Joe Cohn. "Hopefully, in conference, legislators from both the House and Senate will act to protect student rights by cutting the provision that would unfairly subject students cleared of sexual misconduct to ‘double jeopardy' and eliminating the misguided National Center for Campus Public Safety."

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, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at thefire.org.

CONTACT:

Greg Lukianoff, President, FIRE: 215-717-3473; greg_lukianoff@thefire.org

Permalink | E-mail comments | Posted on May 17, 2012, at 2:40 PM

‘Julea Ward Freedom of Conscience Act’ before Michigan Legislature

May 17, 2012

Torch readers may recall the case of Julea Ward, an Eastern Michigan University (EMU) student in counseling who was expelled for seeking to refer a gay client to another counselor when counseling would have required violating her Christian beliefs. The United States Court of Appeals for the Sixth Circuit issued a victory for Ward in January (her lawsuit against EMU is currently back in district court), and we wrote about the case at that time. 

The State News, Michigan State University's student newspaper, reports that a bill is hitting the floor in the Michigan House of Representatives that seeks to provide statutory protections for students like Ward. House Bill 5040 was introduced last October and aims to prevent discrimination by Michigan universities against students in counseling, social work, and psychology who "refuse to counsel or serve a client as to goals that conflict with a sincerely held religious belief or moral conviction of the student" provided that the student "refers the client to a counselor who will provide the counseling or services." FIRE will have more on this story as it progresses.

Permalink | E-mail comments | Posted by Andrew Kloster on May 17, 2012, at 1:58 PM

Professor Who Criticized Muslims on Facebook Sues Purdue University Calumet

May 16, 2012

Here's today's press release:

 CHICAGO, May 16, 2012—A professor has filed a free speech lawsuit against Purdue University Calumet after the university punished him in the wake of his remarks about Muslims on Facebook. The PUC Muslim Student Association and several students and faculty members had filed harassment complaints against professor Maurice Eisenstein after he criticized moderate Muslims who he believed had not condemned "radical Muslim" terrorism in Nigeria. Two faculty members had also filed retaliation complaints against Eisenstein, who came to the Foundation for Individual Rights in Education (FIRE) for help.

"This is not the first time and it won't be the last time we will see a university punish a student or professor for constitutionally protected speech on Facebook," said FIRE President Greg Lukianoff. "Professors at public universities should not have to go to court to defend their free speech rights."

Eisenstein's ordeal began on November 6, 2011, when he posted a photo on Facebook of "Christians killed by a radical Muslim group" in Nigeria two days earlier, writing: "Where are the ‘moderate' Muslims['] reaction[s] to this? Oh, I forgot they are still looking at the earth as flat according to the idiot Mohammad [sic], may his name be cursed." In mid-November, faculty members, students, and the PUC Muslim Student Association filed harassment and discrimination complaints against Eisenstein due to the Facebook comments and unspecified concerns about his teaching. The university's investigation dragged on for months. 

FIRE first wrote PUC Chancellor Thomas L. Keon in January, explaining that Eisenstein's speech was protected by the First Amendment and did not reach the threshold of discriminatory harassment. Keon replied on February 14 declining to discuss the case, and the investigation continued. On February 22, Keon wrote Eisenstein informing him that he had not been found guilty in any of the nine complaints.

Keon, however, found Eisenstein guilty of "retaliation" for two isolated comments. In one, Eisenstein had written in an email to the local Jewish Federation that "I consider anything from [one of the faculty accusers] to be in and of itself cursed and therefore untouchable." 

FIRE challenged the retaliation findings in a second letter to Keon on March 5. FIRE cited the Supreme Court's statements in Burlington Northern & Santa Fe Railway v. White (2006) that "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience" and that antidiscrimination law "does not set forth ‘a general civility code for the American workplace.'"

Eisenstein appealed the retaliation findings, but on April 5 his appeal was denied. Eisenstein filed a lawsuit last week against PUC, the two faculty complainants, and others for violating his First Amendment rights. 

"Eisenstein's colleagues ganged up on him to punish him for his protected expression," said FIRE Vice President of Programs Adam Kissel. "The best remedy for ‘bad' speech is more speech, not this pattern of wild prosecution."

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.

Tell Purdue University Calumet to stop chilling free speech today!

CONTACT:

Thomas L. Keon, Chancellor, Purdue University Calumet: 219-989-2204; tkeon@purduecal.edu
Adam Kissel, Vice President of Programs, FIRE: 215-717-3473; adam@thefire.org

Permalink | E-mail comments | Posted on May 16, 2012, at 4:16 PM

FIRE to UC System President: Revise Systemwide 'Intolerance' Reporting System

May 16, 2012

Yesterday afternoon, FIRE sent a letter to Mark Yudof, president of the University of California (UC) System, urging him to reform the “systemwide intolerance report form” in order to protect freedom of speech on the ten campuses of the UC system.

Like so many bias reporting protocols, the UC system’s “Campus Climate” page defines reportable incidents to include large amounts of protected speech. For example, the page defines “expressions of bias” as “a general communication not directed toward a particular individual, which disparages a group of people on the basis of some characteristic”—a definition so broad that it could include almost anything that another person finds offensive.

While the policy does not specify whether all such incidents are punishable, even the threat of an investigation is sufficient to impermissibly chill protected speech. As we wrote in our letter,

It is insufficient to say that the Campus Climate policy provides only for the investigation, not the punishment, of protected speech. When the only conduct alleged is protected speech, the act of investigation threatens the First Amendment rights of the person being investigated. See Sweezy v. New Hampshire, 354 U.S. 234, 245, 248 (1957) (noting that government investigations “are capable of encroaching upon the constitutional liberties of individuals” and have an “inhibiting effect in the flow of democratic expression”).

Compounding the problem, the Campus Climate policy explicitly incorporates the individual UC campuses’ “Principles of Community,” many of which contain their own restrictions on speech protected by the First Amendment. UC Davis, for example, recently invoked its Principles of Community in punishing a medical student for his lack of “courtesy” over email.

We requested a response from President Yudof by June 5, and we will keep you posted as to any developments. In the meantime, any university with a bias reporting protocol would do well to review that protocol to ensure that it does not infringe on students’ free speech rights.

Permalink | E-mail comments | Posted by Samantha Harris on May 16, 2012, at 3:35 PM

Severe Penalties for Stealing Newspapers at Central Conn. State U.

May 16, 2012

Invoking a deep commitment to freedom of speech and freedom of the press, President Jack Miller of Central Connecticut State University (CCSU) has announced severe penalties against two soccer coaches who apparently stole about 150 copies of the student newspaper, The Recorder, in early May. 

At least one of the coaches, Shaun Green, was caught on video taking the newspapers. Often the thieves in such cases are hard to find, but the surveillance cameras on campus (like them or not) made this investigation easy. 

As you might expect, the stolen issue of the newspaper included negative information about the soccer team. Editor Nicholas Proch told NBC Connecticut that the article concerned "the team's disqualification from next year's postseason due to NCAA academic sanctions."

In a press release yesterday, President Miller announced the punishment and the principles behind it, stressing that "we have built a culture of freedom of expression and freedom of the press and personally defended those freedoms even when the result is criticism of us." 

The punishments listed in the press release are severe and even extend to the Athletics Department budget:

First, Assistant Coach Paul Wright will not have his contract renewed when it expires on June 14, 2012.

Second, mindful of Coach Green's 27 years of service to Central, the University will sanction him as follows:

1. He will be suspended for 60 days without pay.
2. He will be suspended from coaching 4 games during the 2012 season.
3. He is required to issue a formal written apology to the University community, to the CCSU Athletics Department, and to the student reporters and editors of the Recorder.
4. He must make personal financial restitution to the Recorder for destroying the copies.
5. In accordance with the collective bargaining agreement, a letter of suspension will be placed in his personnel file specifying the consequences for any further behavior demonstrating a lack of fitness in leadership. 

Third, the CCSU Athletics Department will be penalized $100,000.

Prior to the imposition of Coach Green's suspension without pay, he will have access to contractual due process rights and procedures under the collective bargaining agreement. 

Kudos to President Miller for taking the theft seriously and addressing it as the violation of free speech that it was.

Permalink | E-mail comments | Posted by Adam Kissel on May 16, 2012, at 10:39 AM