FIRE Letter to Nassau Community College President Donald P. Astrab, August 16, 2011

August 16, 2011

President Donald P. Astrab
Nassau Community College
Office of the President
Administrative Tower, Eighth Floor
Garden City, New York 11530

URGENT

Sent by U.S. Mail and Facsimile (516-572-8118)

Dear President Astrab:

As you can see from our list of Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, academic freedom, due process and, in this case, freedom of expression on America's college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned about the restrictions on free expression and free assembly that Nassau Community College (NCC) has applied to two faculty protests on campus. NCC has unconstitutionally and unreasonably limited each protest to a small zone and has unconstitutionally prohibited protesters from taking their signs outside of the zone.

This is our understanding of the facts; please inform us if you believe we are in error. Members of the Nassau Community College Federation of Teachers (NCCFT) planned to assemble in the NCC Plaza area to protest various actions of NCC relating to budget cuts on July 20, 2011. About a week ahead of the protest, NCC professor Ralph Nazareth notified NCC's Public Safety Office of the group's plans.

On July 20, shortly after Nazareth arrived for the protest, Director of Public Safety Martin J. Roddini handed him a "NOTICE" limiting the protest to a specific area enclosed by metal barricades. It stated:

For the safety and security of all members of the community, the College has designated the enclosed area to facilitate your planned demonstration. ... Any person leaving the designated area with the intent to protest will be warned that he/she must return to the enclosed area. If that person persists, his/her right to remain on the campus may be forfeited.

About seven members of the group protested inside the barricades. They held large posters with messages including "Students are not sardines-class size matters," "NCC is not fast food-No drive-through education," "Stop the corporate takeover of NCC," and "Restore full-time faculty lines now."

The group also had informational leaflets to distribute. According to Nazareth, however, Roddini told him that the group was prohibited from distributing them from within the barricades unless the leaflets had been preapproved by the Student Government.

On July 29, NCCFT announced a second demonstration in the Plaza on its website, scheduled for August 3. According to the announcement, the group would be "protesting the lay-offs, the lack of shared governance, and the destructive impact of the president's actions on our college." According to NCC professor Frank Frisenda, when he arrived for the protest on August 3, barricades again had been set up for the protest. Roddini was there. Frisenda asked Roddini why the barricades had been set up, and Roddini handed him another notice.

This notice cited County Ordinance 238-1984, which prohibits persons from obstructing "any entranceway or exit of a facility." The notice thus stated that in reaction to NCCFT's announcement of the protest, "an area has been designated for such a gathering on the Plaza proximate to the Tower Building that will not interfere with, encumber or obstruct passage to any entranceway or exit to or from the Tower Building or adjoining buildings."

About a dozen people participated in the rally, carrying similar posters including "Nassau Community College Federation of Teachers fighting for Dignity and Worth." They remained behind the barricades until Roddini, noting the high temperature, permitted the protesters to move to a shaded location nearby. When Frisenda asked Roddini whether the protesters would be permitted to distribute leaflets outside of their corralled area, Roddini replied that this would only be permitted if protesters did not also carry their signs.

FIRE is deeply concerned by these unconstitutional restrictions on expression at NCC, a public institution bound by the First Amendment. NCC may not punish Nazareth, Frisenda, or other protesting faculty members simply for exercising their fundamental right to free expression by straying beyond their corralled zone bearing handheld protest signs.

NCC has both legal and moral obligations not to restrict expression to such specific areas as in this case, and NCC's establishment of a free speech zone that restricts expression to a fraction of the campus is legally insupportable. While a college may establish a "reasonable time, place and manner" restriction as allowed by cases like Ward v. Rock Against Racism, 491 U.S. 781 (1989), there is nothing at all "reasonable" about transforming the vast majority of the college's property-indeed, public property-into a "censorship area." Federal case law regarding freedom of expression simply does not support the transformation of public institutions of higher education into places where constitutional protections are the exception rather than the rule. Time and again, courts have determined that to be considered legal, "time, place and manner" restrictions must be "narrowly tailored" to serve substantial governmental interests. The generalized concern for order that underlies the establishment of free speech zone policies is neither specific enough nor substantial enough to justify such restrictions. The limitations on the NCCFT protests far exceeded what was necessary to keep protesters from entrances and exits.

In addition to being legally bound by the First Amendment as a public institution, FIRE notes that for more than 20 years, NCC has explicitly dedicated itself to encouraging free speech on campus. NCC's Policy Statement with Respect to Bias & Discrimination, for example, states:

Giving recognition to constitutional guarantees of freedom of expression, including the right to express views, opinions, and beliefs that some may find offensive, Nassau Community College, in its policies and actions, and in accord with appropriate statutes and applicable judicial precedents, will make every effort to encourage free speech as protected by the U.S. Constitution. [Emphasis added.]

From a moral perspective, one of the central functions of institutions of higher learning, particularly in a free society, is to serve as the ultimate "free speech area." A college serious about the search for truth should be seeking at all times to expand open discourse, to develop intellectual inquiry, and to engage and challenge the way people think. A college that refuses to tolerate sincere discussion of matters of public interest is a college incapable of teaching students to live as free citizens. By limiting free speech to a small fraction of its campus, NCC sends the message that speech is to be feared, restrained, and monitored. This message is completely incompatible with a free society and stands in stark opposition to central ideals of higher education.

As the Supreme Court wrote in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957):

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. [Emphasis added.]

NCC's actions in regulating free expression create the very "atmosphere of suspicion and distrust" against which the Court warned in Sweezy.

FIRE has successfully challenged the establishment of free speech zones at colleges and universities across the nation, including at the University of North Carolina at Greensboro, West Virginia University, Seminole Community College in Florida, Citrus College in California, Texas Tech University, and Tarrant County College in Texas. In all of these cases, the challenged institutions have either decided on their own to open their campuses to expressive activities or have been forced by a court to do so. For instance, after FIRE intervened at Texas Tech, a federal court determined that Texas Tech's policy must be interpreted to allow free speech for students on "park areas, sidewalks, streets, or other similar common areas ... irrespective of whether the University has so designated them or not." See Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004). NCC would be well advised to take such a precedent into account in considering its own actions.

Please spare NCC the embarrassment of fighting against the Bill of Rights-a statement of both law and principle by which the college is legally and morally bound. We understand that a third NCCFT protest is scheduled for tomorrow, August 17. We urge NCC to act immediately by permitting protesters to demonstrate-with their signs-anywhere on campus that does not directly obstruct entrances or exits or otherwise violate constitutional provisions of the law and of college policy. Let your faculty members exercise their fundamental civil rights; let them speak, assemble, and protest as their consciences dictate.

FIRE is committed to using all of its resources to abolish the unconstitutional limits on freedom of expression that have been set at NCC. Because tomorrow's protest is imminent, we request an immediate response directly to NCCFT leaders and a response to FIRE by August 31, 2011.

Sincerely,

Peter Bonilla
Assistant Director, Individual Rights Defense Program

cc:
Donna Haugen, General Counsel, Nassau Community College
Martin J. Roddini, Director of Public Safety, Nassau Community College
M. Debra DeSanto, President, Nassau Community College Federation of Teachers
Frank Frisenda, Vice President, Classroom Faculty, Nassau Community College Federation of Teachers