WMU Sacrifices Students’ First Amendment Rights to Keep Settlement Agreement Secret

On April 30, 2015, Western Michigan University (WMU) and the Kalamazoo Peace Center (KPC) settled a lawsuit over WMU’s use of an unwritten security policy to keep rapper and social activist Boots Riley off of campus, marking the fifth victory in FIRE’s Stand Up For Speech Litigation Project. That should have been the end of the story. Sadly, it isn’t. In implementing the settlement, WMU has shown that it will continue to trample student rights to hide the fact that a student organization successfully forced it to change its unconstitutional policies.

The deception began almost immediately after the settlement, when a WMU spokeswoman stated falsely that the university would not pay damages and just took the opportunity to “fine tune its policies.”

WMU’s next step was to tell KPC’s lawyers that the university had “enacted” the new policies. It is worth emphasizing that WMU agreed on the record in court before a federal judge that it would “enact” the reformed policies by May 28. What follows is a description of how WMU has chosen to interpret the word “enact.” Put simply, WMU apparently thinks that if you say you’ve enacted policies, you’ve done so. Informing your students that the new policies exist is not part of the deal.

KPC’s attorneys reached out to WMU’s lawyer repeatedly after May 28 about publicizing the new policies; after nine days without a response, WMU’s lawyer sent a one-line email stating her clients had advised her that the policies were online.

So the hunt began. Neither the Student Affairs webpage, the Student Activities and Leadership Programs webpage, nor the Registered Student Organization webpage indicated that the policies had changed. Back to the lawyer. She provided a URL that linked to the webpage of the Bernhard Student Center. Of course that makes perfect sense: put university-wide policies regarding free expression in open areas of campus, posting, and event security on the webpage students go to when they want information about catering and decoration policies in the Student Center.

But on Monday, June 10, WMU upped the ante still further by publishing its 2015–16 Registered Student Organization Handbook (cached copy), which omitted the Outdoor Common Spaces policy entirely. Specifically, WMU did not find it necessary to inform student organizations that the university agreed in a settlement registered in federal court to the following:

The University will not restrict free expression in “areas generally available to students and the community,” defined as grassy areas, walkways or other similar common areas. This definition governs the phrase “areas generally available to students and the community” as it is used in this policy. These areas generally available to students and the community are designated public forums.

Instead, the RSO Handbook had the following provision on page 18:

FREE SPEECH AREA As an open community, WMU protects freedom of expression and powerfully affirms civility. As such, all members of the University community and all those who visit our community are expected to respect the rights and dignity of others. In support of these principles and the marketplace of ideas, WMU has established the flagpoles as an area for outdoor expression.

To sum up (so far): The Outdoor Use Policy that WMU agreed to in court is available only on the Bernhard Student Center website that otherwise describes policies relating to a specific indoor space. The Outdoor Use Policy did not appear anywhere in the RSO Handbook; instead, the Handbook limited all spontaneous outdoor speech to a tiny free speech area.

But WMU was not done obscuring its legal commitments and violating its moral obligation to respect the constitutional rights of its students. Although the lawsuit was prompted by the arbitrary application of a non-existent security policy, the 2015–2016 RSO Handbook did not contain the language regarding security that university officials swore in court they would enact. That policy, again only available on the Bernhard Student Center webpage, is two pages long and makes clear that the university may not require security based on the views of any speaker, that it has to provide a viewpoint-neutral justification for requiring security (e.g., number of participants, collection of cash, or provision of alcohol), and that students have the right to appeal any requirement that an RSO pay for security.

The 2015–2016 RSO Handbook said none of that. Its event security policy stated on page 3:

RSOs may need to request security services from the WMU Department of Public Safety for a particular event. Generally, these services must be requested a minimum of ten (10) days prior to the planned event. Moreover, these services must be paid for in advance by cash, certified check, money order, or by a campus financial transaction. The WMU Department of Public Safety staff makes the final decision on the number of officers needed for each scheduled event to maintain campus safety and security. Call (269) 387-5573 for details.

No mention of viewpoint neutrality, no mention that WMU is obligated under the new policy to make efforts to accommodate requests received less than 10 days in advance, no mention that the university can pay for the security it feels is necessary, and not a peep about the university’s obligation to provide an appealable written justification for its security requirements.

So back to the lawyer. WMU’s “solution” was to pull the RSO Handbook and remove the policies from the Bernhard Student Center webpage. That left students with one source of information for WMU’s policies: the Student Code of Conduct, which—you guessed it—has outdated language regarding WMU’s posting policies in Appendix D. KPC’s lawyers pointed out that WMU’s latest adjustments to its website put things back to square one and that the university could solve the problem by simply putting links to the new policies on the Student Activities and Leadership Program webpage with a notation that these policies supersede any contradictory directives. WMU’s lawyer had this to say in response:

My clients have complied with the settlement agreement, which does not specify how you would prefer this to be rolled out.

Guilty as charged: KPC did not insist on a provision in the settlement that the policies would be publicized in a way that students could find them. It was assumed that WMU administrators would execute the agreement in good faith, as befits public servants running a publicly funded institution of higher education. Lesson learned.

Every other university that has adopted new policies as part of settlement agreements since the Stand Up for Speech project began has publicized them to their students in good faith.  But not WMU.

As of the morning of June 12, the new policies are back on the Bernhard Student Center webpage.

One of KPC’s co-directors observed: “It appears that WMU wishes to maintain the old norms of censoring and discriminating against events with controversial messages.” But WMU doesn’t have that option. It has a moral and legal responsibility to let its students know that the vague and arbitrary standards that it previously used to limit student expression are no longer in effect.

WMU is operating in bad faith by stashing these policies on its website where students will not think to look. WMU administrators may think they’ve put one over on KPC and FIRE. But even if this fight were over (and it isn’t), WMU has shown that it will sacrifice its students’ constitutional rights to  “win” a PR game. And that is the saddest part of this story.