Bucknell's General Counsel Abuses the Truth to an Exceptional Degree--Even for Him

Every year, FIRE places a full-color, full-page advertisement in the college rankings issue of U.S. News & World Report. The ad (here is 2009's) names the colleges and universities on FIRE's Red Alert list, our "worst of the worst" list of schools that have shown such severe and ongoing disregard for free speech that we warn students and faculty members to avoid them. This year, Bucknell University is scheduled to be included in the ad (along with Brandeis University, Colorado College, Johns Hopkins University, Michigan State University, and Tufts University).

Bucknell deserves its ignominy because it (1) repeatedly shut down events run by the Bucknell University Conservatives Club (BUCC), (2) failed to own up to its mistakes, (3) changed one of its policies to make it even more liable to restrict expression, and (4) repeatedly misrepresented the law and the facts.

For the purposes of the Red Alert list and the U.S. News ad, however, it does not matter that Bucknell refuses to acknowledge the real reasons why it restricted the BUCC's expressive events. (If it did matter, that list would be much, much longer.) What matters is Bucknell's ongoing restrictions on all students and student organizations today. To this day, Bucknell still will not let any group hold an "affirmative action bake sale" on campus, on the false and mistaken ground that such political expression is illegally discriminatory. 

Such "bake sales" have been permitted on almost every college campus in the country--but not at Bucknell. These political statements tend to come from conservative students who satirize affirmative action, while the equally political "wage gap bake sales" upon which they are based, which generally are run by liberal students who satirize unequal average wages among demographic groups (usually men and women), are permitted all over the country.

We have made clear that these sales are perfectly legal—especially when they advertise "optional" pricing and do not even enforce the suggested, satirical prices—and legal counsel at college after college have agreed with us. But not Bucknell, which has instead hardened its "Sales and Solicitation" policy and made it into a "Sales and Promotions" policy that newly and ambiguously applies to "promotions" of "causes."

So, here's the key to getting off of FIRE's Red Alert list while there is still time for FIRE to pull Bucknell's name from the ad. It's quite simple: If Bucknell is willing to change its position and state that such sales are acceptable and not subject to the restrictions of Bucknell's current "Sales and Promotions" policy, FIRE would be very pleased to congratulate Bucknell, instead of shaming the university in front of the nation once again.

That's basically what we told Bucknell's outgoing president, Brian C. Mitchell, in January. Instead of receiving anything like this simple acknowledgment of student rights—or any sign at all that Bucknell cares about student rights—we got this hot-headed letter from Bucknell General Counsel Wayne Bromfield. It quibbles around the edges of the real issues, avoids confronting the clear evidence that we are right, misrepresents the truth once again, and only proves why Bucknell deserves to remain on FIRE's Red Alert list.

Here is a line-by-line analysis of Bromfield's response so that there can be no question for Bromfield (or his bosses) about how far he has abused the truth of the matter:

January 18, 2010

Mr. Robert L. Shibley, Vice President
FIRE
601 Walnut Street, Suite 510
Philadelphia, PA 19106

RE: Bucknell University Conservatives Club and FIRE's Red Alert List

Mr. Shibley:

I write on behalf of President Mitchell in response to your January 7, 2010 letter. The letter, as you well know, grossly misrepresents the facts.

As Bromfield well knows, he is the one grossly misrepresenting the facts. This theme recurs below.

Despite your self-described role in defining the "moral and legal obligations" of others, you have abused the truth in this letter to an exceptional degree even for you.

See above, including the title of this blog post.

First, Bucknell has never prohibited, in your words, "unfettered debate of controversial issues—such as affirmative action—on public areas of its campus."

Here are the exact words of Associate Dean of Students Gerald W. Commerford as recorded on audio when he denied the request of BUCC to hold an affirmative action bake sale: "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." (Emphasis added for Bromfield.) When a BUCC member then asked, "There is no way we can have an event like this?", Commerford replied, "No."

As the younger generation says these days: Wayne Bromfield, you've been pwned.

As you are well aware, having chosen to opine effusively on this matter, the event you are referencing occurred on the University's private property.

This is a red herring. See Robert's post pointing out Bucknell's repeated promises of freedom of expression. Bucknell is both morally and legally bound to its promises. As FIRE noted in our first letter to President Mitchell in May 2009, in Pennsylvania, documents such as the student handbook have been found to constitute binding contracts between students and the university.

Second, you invent another non-existent controversy by claiming that "Bucknell must also reverse its decision barring controversial political speech--including the Bucknell University Conservative Club's 'affirmative action bake sale'--from the public areas of campus."

This looks like the same, very existent controversy mentioned above. Shall I quote Dean Commerford once more?

As you seem to know well based on your multiple and redundant letters to us, Bucknell halted the spring 2009 event that included protest dollars because it (a) was occurring on the University's private property, and (b) was interfering with the safe flow of students through the student center.

Here are the exact words of Judy Mickanis, the administrator who shut down the distribution. You will notice the complete abuse of the truth by Wayne Bromfield in misrepresenting what she really said:

"With a smile on my face, I jokingly said to the students that 'they were busted'. Yes, I used those words, but I put a hand on the young woman's arm and said that I was teasing, 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." 

How does Wayne Bromfield go from "[y]ou just can't hand things out without approval" to "interfering with the safe flow of students"? By lying.

Even as we halted it for these reasons, we encouraged the students to register the event and proceed with it under normal allowances. The students made no such request.

Here, Bucknell is admitting that prior registration was required for distribution of satirical political materials by students on their own campus. That is very far from what any campus that actually respects free speech would require.

We prohibited the bake sales because the events discriminated against students,

Nope, they don't discriminate against students, which is why almost every college in the United States has ultimately allowed them to occur, as I mentioned above.

and because the sales were to be conducted by a student organization that by their own admissions misrepresented the event in filing for permission to hold the events,

Behold the sinister "misrepresentation" of the BUCC: as the video demonstrates, Dean Commerford took "the opportunity to shut you down" because their registration form showed pricing that was different from what BUCC actually charged—namely, saying the baked goods would be sold at $2.00 while in actuality they were being sold at $1.00. BUCC was selling goods at half price—could anything be more evil? In addition, the form was poorly constructed and did not provide ample room to describe the full meaning and satirical pricing of the bake sale.

Plus, this is a completely new argument from Bromfield—one that we have never seen before. Bromfield appears to be arguing that even if the bake sale did not discriminate (which it does not do), BUCC uniquely had been punished by not being allowed to hold future bake sales because of a paperwork discrepancy. If this is true, it was a secret punishment that nobody knew about. It was not mentioned by Commerford or even by Bromfield himself, until now. There was no hearing, and we have seen or heard of no documentation whatsoever to support this abuse of the truth by Wayne Bromfield.

using the very same forms that every other student organization at Bucknell somehow manages to fill out honestly and accurately.

Wouldn't it be fun if this matter went to court and, during discovery, we were able to take a look at all of the other groups' forms and interview them about what they actually did? I do not believe for a minute that Commerford would have eagerly taken "the opportunity to shut you down" if any other event on campus had shown a similar or worse discrepancy.

It is disappointing that you invent facts, but that seems to be the only way you can justify your requests that we make an exception for the BUCC in how they treat others, in the safe use of private property, and in what students learn about working honestly with staff.

See the facts documented above. It is doubly disappointing that Wayne Bromfield invents facts and then accuses FIRE of inventing facts, but that seems to be the only way that he can justify Bucknell's refusal to give BUCC equal treatment with other student groups on campus.

Third, you invent another straw man with this additional misrepresentation of the facts, "Bucknell must also clarify that its recently enacted 'Sales and Promotions' policy will not require prior approval for activities (such as the distribution of 'Obama stimulus dollars') that would constitute protected expression on a public campus." You know as well as we do that the "Sales and Promotions Policy" is not new. In fact you cited that policy in your first letter of May 21 under its prior name, the "Sales and Solicitation Policy."

That's a funny one, Wayne Bromfield! It is new, has new language that directly impacts the kinds of events in question (as I note in my introduction above), and even has a new name. But no, no, no, it is not new! The straw man here is Wayne Bromfield's argument that somehow our use of the phrase "recently enacted" is the problem, rather than our concern about the potential restrictions on speech that were newly added to the policy. (People create straw-man arguments in order to have easy arguments to batter down. That is exactly what Bromfield is doing here.)

You also know as well as we do that Bucknell is a private institution and not a public campus.

See, again, Robert's earlier post. Of course we know this, which is why, from the beginning, we have pointed out that Bucknell is morally and contractually bound by its own promises. These promises give students the reasonable expectation that they would be allowed the same speech rights at Bucknell that they would have on any public campus. (Perhaps Bromfield misunderstood our grammar in the line he quoted.)

If you would like to have a serious and honest discussion about freedom of speech and Constitutional Rights [sic], notably as they pertain to private colleges and universities, it would be worth having the meeting you discuss. But nothing you have contributed to this discussion thus far demonstrates anything more than your intentions to continue to abuse the truth for cynical purposes. It is no credit to you that you have chosen to explore otherwise serious matters in this way.

I don't know about you, but given everything else in this letter, I found this paragraph kind of fun to read, with its idea that Bromfield is the only one being "serious and honest" and the accusation that, after all, FIRE exists "for cynical purposes."

Sincerely,

[cough, cough]

Wayne Bromfield
General Counsel