Bucknell University Lies Again

Maybe someone is feeding false information to Bucknell University General Counsel Wayne A. Bromfield, because his latest response to Bucknell's free speech meltdown repeats the lies we already have heard from him and Bucknell.

The truth is, Bucknell shut down a student group's protests against President Obama's stimulus plan and against affirmative action policies, using inapplicable university policies as pretexts. The distribution of "Obama stimulus dollars" by the Bucknell University Conservatives Club (BUCC) was shut down under an inapplicable solicitation policy, and the administrator who shut it down gleefully said that the students were "busted." (Here's the evidence.)

Later, the group's affirmative action bake sale was shut down by a different administrator who also gleefully used a price discrepancy as a pretext, noting that the discrepancy gave him the "opportunity" to shut it down. (Here's video evidence.) The administrator, Associate Dean of Students Gerald W. Commerford, told the students that they would be able to hold the bake sale at a future date, but when the students applied to do so, he said no (actually, "no, no, no, no, no, no, no, no")—even with non-discriminatory pricing and a sign that merely suggested satirical, optional pricing. (Here's audio evidence.) Even worse, Commerford basically said that the students could never hold any sort of protest on affirmative action out in the public areas of campus, proclaiming that Bucknell would wield the authority to decide what kinds of forum and venue were appropriate for the discussion of affirmative action. (In addition to the audio, here's more evidence of this truly oppressive policy, which actually appears nowhere in Bucknell policy or in the policy of any college that actually values freedom of expression and the marketplace of ideas.)

After FIRE publicized the case, Bucknell responded with false and misleading information about what actually happened, flatly contradicting the documentary evidence of the case. FIRE's Vice President, Robert Shibley, immediately responded with the easy takedown that the false information warranted. On Tuesday, the Philadelphia Inquirer, Associated Press, and Wall Street Journal Law Blog reported on the case, and yesterday President Brian Mitchell announced his resignation effective June 30, 2010.

For some unfathomable reason, instead of admitting and correcting its errors, Bucknell is back for more. Here is a point-by-point analysis of Bromfield's latest lies on behalf of Bucknell:

Dear [REDACTED]:

The president has shared with me your recent email regarding the statements made by Fire [sic] about Bucknell and asked me to respond on behalf of the University. We appreciate the opportunity to correct misinformation you have received. Fire has conveniently failed to note a few facts.

All of the facts are available for the world to see at https://www.thefire.org/index.php/case/794.html—many more facts, to be sure, than the few lies presented as facts below. See above for the video, audio, and other documentary evidence proving each one of FIRE's claims.

They claim discrimination and at the same time want the Bucknell University Conservatives Club (BUCC) to have special privileges.

Bucknell's pattern of discrimination against BUCC is unmistakable. Yes, we claim and prove that Bucknell has discriminated against BUCC's views. Most of all, as stated above, Commerford told BUCC members that their views are simply not acceptable for display in a public forum of BUCC's choosing and that Bucknell will decide which forum is appropriate. No other student group's issue or display has been subjected to this restriction. As for "special privileges," FIRE has never asked for any such thing. We have asked that Bucknell equally enforce applicable policies.

A university is required by law not to discriminate in its policies or practices. These standards disallow activities on campus that discriminate based on race, gender, ethnicity, and other characteristics. Contrary to what Fire implies, there is no "just kidding" defense to discriminatory practices.

It is quite strange that Bromfield still believes this. Many other schools have permitted affirmative action bake sales across the country, as well as equally satirical "pay equity" bake sales, which charge different prices by race and gender based on the relative average wage of the different race and gender groups. In these cases, the student groups' speech is not attributable to the university and thus is not limited by the same laws against discrimination as those which bind the university.

But this is beside the point, for these bake sales do not constitute unlawful discrimination. Pay equity bake sales are designed to bring attention to average wage disparities, and bake sales like BUCC's are designed to bring attention in a particularly visceral way to what the protest organizers see as unfair discrimination by others in admissions and employment. Nobody is arguing that these sales are discriminatory but should enjoy some kind of "just kidding" exception. They are not discriminatory. Rather, pay equity bake sales and affirmative action bake sales are protected and widely used examples of political theater, and as such they constitute core political expression. There is an obvious difference between a symbolic piece of political theater and the type of discriminatory activity a university is prevented by law from conducting or allowing.

The BUCC wanted to hold a discriminatory sale.

Nope—again, BUCC wanted to hold a satirical "sale" that protested against affirmative action policies that they believed to be discriminatory. Moreover, when Commerford rejected the BUCC's second bake sale, the students very clearly offered to have optional, volunteer payments of different prices, presumably so that other students could participate in the protest by buying items at whatever prices they wanted. Simply put, Commerford rejected a completely non-discriminatory protest bake sale.

They filled out an application to use the campus space misrepresenting the sale and not specifying their prices would be discriminatory.

This regards the first sale. The video evidence shows that Commerford said he was shutting down the bake sale not because the prices were different for different groups, but because the sale price listed on the application, $2.00, was different from the prices at the event. The students offered to change the pricing on the spot in order to conform to the application, but Commerford rejected that option. He did offer, however, to let the students hold the bake sale, with the forms properly filled out, at some later time. This offer turned out to be false.

When the University then halted the sale, the BUCC was repeatedly offered venues and fora to announce and debate their positions. They declined the offers.

Here Bromfield admits to Bucknell's discrimination against BUCC's views and Bucknell's suppression of BUCC's freedom of association and expression. The audio recording tells the truth in stark detail, as we relate in our May 21, 2009, letter to President Mitchell:

In particular, according to an audio record of the meeting, a BUCC member asked if the event would be approved if the group listed the bake sale prices as "optional," making clear that anyone could pay whatever price they wanted, regardless of race. Commerford completely rejected this option, however, saying, "No, no, no, no, no, no, no, no, because it's a discriminatory [pricing] policy." He then added, "It's a political issue, ok; it needs to be debated in its proper forum, ok, and not on the public property on the campus." When a BUCC member then asked, "There is no way we can have an event like this?" Commerford replied, "No." [Emphasis added.]

Commerford himself acknowledged the record when he said to The Bucknellian, "I clearly advised them that I am happy to help them arrange for a proper venue for a campus dialogue to discuss and/or debate affirmative action and related issues." Again, Bucknell is singling out BUCC, BUCC issues, and BUCC events for special mistreatment, censorship, and regulation, and in this instance Commerford admitted to doing so. That Bromfield repeats Commerford's admission only deepens Bucknell's mire of malfeasance.

The space the BUCC sought to use for their handout distribution and bake sale is transited every day by some 3,000 students who live on campus, as that space is directly outside the student dining halls. Bucknell only permits campus groups to use the space for distribution of material, after registration of their event. If the BUCC alone can use that space without permission, hand out materials wherever and however they want in a highly trafficked area,

Here's the truth, verified by the administrator who shut them down. BUCC members handed out the fake dollar bills for an hour without causing any disruption or interference at all, standing at Bucknell's Elaine Langone Center. After the trouble-free hour, two members of the Reservation, Information and Conference Services (RICS) staff, including Director Judith L. Mickanis, approached the students. Mickanis said "You're busted!" and put her hand on a female student's arm. The administrators shut down the protest, stating that BUCC had been "soliciting" without prior approval in the form of an approved "Sales and Solicitation" request. BUCC's Vice President for Special Events, Sami Prehn, asked why a Sales and Solicitation form was necessary, since club members were merely handing out free, fake money as a symbolic protest. The RICS administrators said that this was considered solicitation and was the equivalent of handing out Bibles.

On May 4, BUCC President Travis Eaione e-mailed his account of the event to Mickanis, and she verified it via e-mail later that day:

Yes, I used those words, but I put a hand on the young woman's arm and said that I was teasing [so much for Bromfield's rejection of the "just kidding" defense], but that you need to fill out a sales and solicitation form to give anything out. The group politely questioned this, and the young woman said she didn't know about this policy.  The policy is in place to protect the entire BU community and I said that consistently permission was needed to hand out anything from Bibles to other matter. You just can't hand things out without approval. I told them to go to RICS when it reopened at 1pm and fill out a form, that I would approve it, but it had to be done consistently with other groups. However, let me qualify by saying that groups can solicit only from behind tables, not out in the open like they were doing. [Emphasis added.]

Bromfield has it exactly backwards. It is not BUCC that insists on protesting "wherever and however they want." It is Bucknell University that insists on misrepresenting its own policy (here's the actual policy), demanding prior registration for students to hand out anything at all (including Bibles), redefining all distribution of materials falsely as "solicitation," and strictly confining students wherever and however Bucknell wants in order to control students who do manage to get their expressive materials through Bucknell's hostile administration.

or carry out discriminatory sales, the university will not have upheld its obligation to be fair,

"To be fair"? Bromfield must be just kidding.

let alone to provide a safe environment.

The handing out of materials proceeded for an hour without any incident or complaint, just like virtually every time people pass out expressive materials in heavily trafficked public places. Has Bromfield never seen a city sidewalk in, say, Philadelphia? The alleged concern for "a safe environment" is a smokescreen that no reasonable person could believe as the source of Bucknell's animus, and Mickanis herself said no such thing.

The BUCC is well aware of the requirements for using this space, having followed the requirements before and having been asked if they wished to register the event in order to continue the distribution. They declined that opportunity.

This is not the same as in Mickanis' account. The one student referenced by Mickanis stated that she had no idea about the policy. Moreover, the Sales and Solicitation policy expressly does not cover handing out expressive materials with no actual sales or solicitation component. The policy simply does not apply.

Despite Fire's and the BUCC's claims otherwise, these matters were not questions of free speech. Instead, in these matters, one student group expected special privileges above every other student organization and wanted to discriminate against their fellow students based on race in doing so.

This conclusion only follows if you believe Bromfield's and Bucknell's lies. If you actually look at the evidence for yourself, you'll see that these are entirely questions of free speech. Far from looking for special privileges, BUCC's bake sale was protesting against the special treatment that it perceived in affirmative action policies. BUCC is just hoping to have an equal place at Bucknell with every other student group on campus.

Sincerely,

This word used to mean "truthfully."

Wayne A. Bromfield

* * * * * *
Wayne A. Bromfield
General Counsel
201 Judd House
Bucknell University
Lewisburg, PA 17837
Tel: 570.577.1149
Fax: 570.577.9001

You can register your concerns about Bucknell's misrepresentations or its treatment of BUCC by using FIRE's Action Alert page for Bucknell.