FIRE Letter to UMass Amherst Chancellor John V. Lombardi, October 7, 2004

October 7, 2004

Chancellor John V. Lombardi

University of Massachusetts

181 Presidents Drive

Amherst, Massachusetts 01003

URGENT

Sent by U.S. Mail and Facsimile (413-545-2328)

Dear Chancellor Lombardi:

As you can see from our directors and board of advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, academic freedom, due process, legal equality, voluntary association, and freedom of speech on America.s college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and of our activities.

We write to you today on a matter of the utmost urgency, with the most essential moral and constitutional values at stake. We have been in contact with several University of Massachusetts Amherst students who are faced with draconian punishment by your administration for their presence at a post-student government election party. The information we have gathered suggests that UMass is on the verge of imposing unconstitutional and unwarranted punishment upon students for the .offense. of engaging in constitutionally protected satirical speech. This unjust and illegitimate process has opened the university to potentially serious legal liability and exposes the university and its administration to the risk of public embarrassment.

This is our understanding of the facts, drawn from media accounts of the situation along with documents and testimony provided by students. On March 26, 2004, a number of students gathered in the office of the Student Center for Educational Research and Advocacy (SCERA) in UMass's Campus Center for a party after the student government elections. One of the student candidates present was Patrick Higgins, the speaker of the Student Government Association (SGA) and an unsuccessful candidate for SGA president.

At some point before or during the party, one of the partygoers drew a picture on a dry-erase board that was reportedly a caricature of Higgins. It depicted him with his tongue out, wearing a pointed hat typically associated with the Ku Klux Klan (KKK), holding a small burning cross, and wearing a cape and a shirt with the words "Grand Wizard" written on it. Alongside his head was a speech bubble reading "I LOVE ALANA!!" which was apparently a reference to either the UMass Amherst Office of ALANA Affairs or the ALANA Caucus student group. ALANA is an acronym that refers to "African, Latino/a, Asian/ Pacific Islander, and Native American" students at UMass Amherst.

We understand that the partygoers drew the pictures in reference to accusations made against Higgins in the just-ended SGA election campaign. Members of ALANA had allegedly called Higgins a "racist" because he had opposed a quota system that set aside a certain number of seats in the SGA Senate for ALANA members. Higgins' friends were merely lampooning this accusation. Far from endorsing the KKK, the students were actually mocking what they deemed to be unfair tactics and accusations made against Higgins in the campaign. No one looking at the drawing can claim it endorsed the KKK; rather, it was a satire of some students' attempt to portray Higgins as a bigot.

Several photographs were taken at the party, including some of the caricature itself and some of students in front of the dry-erase board in various silly poses. These photos were eventually posted on the personal web site of student Brian Roberts, who attended the party. Months later, the photos were discovered by an unknown person or persons, who eventually posted them on a website along with a demand that the people in the photos should lose their positions in student government. The information in this website was circulated widely around campus.

The circulation of these photos has resulted in serious controversy, with many calling for the the students in the pictures to resign or be removed from office of because of the "racist symbol" at the party. One of the most vocal advocates for this punishment was SGA President Eduardo Bustamante, who was also Higgins.s political opponent in the race for SGA president. Others, most notably Vice Chancellor for Student Affairs and Campus Life Michael Gargano, called not only for removal from office but also for punishment of these students for various alleged violations of university policy. The Daily Collegian newspaper also reported that the administration was considering filing criminal charges.

The UMass administration wasted little time acting on its threats. On September 27, 2004, several students were charged with offenses against the Code of Student Conduct including "Harassment Conduct Less than a Physical Attack" violations of "University Policies and Regulations" (regarding alcohol consumption), "Theft/Unauth. Use/Damage to Univ. Property," and "Endangering Behavior to persons or property."

The Harassment Charge

The first charge, "Harassment Conduct Less than a Physical Attack," is the one that most directly reflects the reason for the outraged reaction to this situation by many in the UMass community. It is also the charge that is least supported by the evidence and that is clearly unconstitutional in its application to this situation.

The Harassment Charge Does Not Even Meet UMass's (Overbroad) Standard of Harassment

Section II.B.1b of UMass Amherst's Code of Student Conduct defines the harassment charge as:

Conduct less than a physical attack or physical interference which interferes with a person in the conduct of his or her customary or usual affairs, such as the posting of threatening letters directed to the person, the use of threatening language directed at another, harassing or threatening telephone calls, or the vandalism of a person's room (e.g., graffiti). The University has special concern for incidents in which students are subject to such conduct because of membership in a particular racial, religious, gender or sexual orientation group.

The conduct engaged in by the students at the party does not come close to meeting even this potentially unconstitutional standard for harassment. There is no way in which a caricature of a student as a KKK member, drawn on a dry-erase board at a party whose attendees apparently had no problem with the caricature, "interferes with a person in the conduct of his or her customary or usual affairs." Nobody at the party has made such a claim; indeed, the objections to the picture have come only from those who saw pictures of the party months after the event took place. There is no indication of any specific person being "harassed" by looking at the photograph of the caricature. And in order to see the picture, the "harassed" person would most likely have made some intentional effort to see them. Even if they were unwillingly shown the photos by another student, there is no indication that any of the students at the party were actively showing the photos on campus.indeed, Brian Roberts took the pictures off his website in August, before the controversy arose.

The Behavior Called "Harassment" is Constitutionally Protected Expression

Even if the dry-erase cartoon of a KKK member were to constitute "harassment" under UMass's overbroad policy, enforcing such a policy in this case would be unconstitutional. As a state institution, UMass Amherst is, of course, bound to guarantee its students their right of free speech and expression under the First Amendment to the United States Constitution, which includes robust guarantees of protection for satirical expression such as the caricature of a UMass student as a KKK member.

Even highly offensive material, including both satire and profanity, is fully protected under the First Amendment. We strongly encourage you to read the landmark U.S. Supreme Court cases Cohen v. California, 403 U.S. 15 (1971), and Hustler Magazine, Inc. et al. v. Jerry Falwell, 485 U.S. 46 (1988). In Cohen v. California, the Court ruled that a Vietnam War protester's jacket bearing the words .Fuck the Draft. was constitutionally protected expression even when worn in a courthouse. Similarly, in Hustler Magazine v. Falwell, the Court ruled that the First Amendment protects even extraordinarily offensive satire and parody.in that case, a published (and widely circulated) cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. Taken together, these cases decisively and clearly protect offensive material, farce, satire, profanity, and exaggeration, and, in fact, even recognize that the "right to offend" serves a vital societal function.

The depiction of Patrick Higgins as a KKK Grand Wizard could hardly be anything but satire, as Higgins is neither a member nor the Grand Wizard of the Ku Klux Klan, nor does he aspire to be a member or leader of the KKK. As stated above, the caricature of him as a KKK Grand Wizard was in fact a parody of what he felt was an unfair portrayal of him by his political opponents, not a statement that he supported the KKK or that he aspired to one day be the Grand Wizard of that organization. Indeed, a true racist would likely see a picture of the Grand Wizard with his tongue lolling out of his mouth as mockery of the KKK. The point of the drawing was to emphasize the absurdity of portraying Higgins as a cartoonishly evil racist.

That the administration of UMass Amherst or the large majority of the students purportedly outraged by the drawing could have missed its satirical intentions is, in fact, inconceivable. While this attempt at satire may have been clumsy, it was hardly opaque. As will be discussed later, this fact calls into question the motivation of those administrators and students who are loudly advocating severe punishments for the students photographed at the party.

Other Charges Relating to the Party

The charges against the students at the party include "Endangering Behavior to persons or property," which is supposedly found in section II.B.10a of the Code of Student Conduct. There does not appear to be any 10a on the version of the code published on the website of UMass Amherst's Dean of Students, but section II.B.10 states:

Endangering the safety of persons (self or others) or property, or any action that might lead to loss of life or serious physical harm to others, including but not limited to throwing or dropping objects from buildings, sitting on window sills, tampering with or damaging elevator equipment or other machinery, damaging or removing a fire extinguisher or any part of a fire alarm, food fights, hall sports, water fights and snowball fights which involve other than willing participants.

As far as FIRE can ascertain, the only possible "endangering behavior" that might have taken place at the party is UMass's claim that the students allegedly engaged in "drinking games." Drinking games are very common on most college campuses, presumably including that of UMass Amherst, and there is certainly some risk inherent in any game that involves ingesting alcohol. However, most students who participate in drinking games at other universities are charged only with an alcohol violation, not an "endangerment" violation. It appears that the .endangerment. claim is merely a creative attempt to enhance the charges against these students.a backdoor effort to punish the caricature through unrelated charges. UMass risks both liability and hypocrisy if it charges students at this party with .endangerment. from drinking games but does not do the same for students who allegedly participate in drinking games in other situations.

UMass Amherst has also charged students with "Theft/Unauthorized Use/Damage to University property." FIRE has seen or heard no indication that any University property was stolen or damaged at the party, nor does the university claim theft or damage in the charge against the students. The university does point out that the SCERA office is .university property and is to be used for university business.. Presumably, UMass is making the claim that the SCERA office was not allowed to be used for parties. However, student offices at other universities are commonly used for celebrations of one type or another, including parties. In this situation, the claim only has credibility if UMass has a practice of punishing any and all parties in student offices that do not have prior administrative approval. UMass might claim instead that student offices are not to be used for parties which allegedly involve illegal alcohol consumption; however, dorm rooms are not authorized for such use either. Does UMass regularly charge those caught for underage drinking in their dorm rooms with "unauthorized use of university property?"

FIRE takes no position on the alleged alcohol violation, since by itself such a charge does not impact students' rights of free expression or their rights to due process and equitable treatment. FIRE also has no objection to punishing students for .endangerment. or .unauthorized use. if UMass can prove that these occurred and if it can demonstrate that its treatment of the students is similar to the university.s treatment of other students charged with the same violations. However, to be clear, any punishment decisions must be made without reference to the .offensive. caricature and any enhancement of these students. punishment (if the underlying alcohol charges are proven) over the punishment of others convicted of alcohol offenses is both unjust and insupportable. .Offensiveness,. or even .racism,. is not a crime, nor is it an aggravating factor for any of the legitimate offenses of which the students at the party are accused.

UMass Amherst's Reaction to and Investigation of the Photographs

UMass Amhert's response to this incident has been appalling and demonstrates an astonishing disregard for basic Constitutional rights. Upon learning of the caricature, Vice Chancellor Gargano was particularly vocal and expressly threatened the students with expulsion from the university, telling the Daily Collegian in a September 27 article, "I have the authority to remove these people from office.I could give them 500 hours of community service, have them conduct an open forum discussion; I have a variety of sanctions at my disposal. I'm not ruling out dismissal." He also stated, at a "forum on diversity," that he "urged these students to resign" if the Student Government Association doesn't move on it, I will. Are we clear? Resign!"

Needless to say, Gargano's comments were made not in the context of a simple alcohol violation. In what is truly a landmark in shameful conduct, the Daily Collegian reports that a panel consisting of Vice Chancellor Gargano, SGA president Bustamante, and "distinguished faculty members" dubbed the attendees at the party .The KKK Nine.. It is difficult to interpret this as meaning anything other than that the students are either members of the Ku Klux Klan or sympathize with its positions. In America today, there are few more potent or damaging accusations that can be made against someone than that he or she is a racist, and to untruthfully depict students as being sympathetic to the KKK.when the very nature of their expression makes it patently obvious that they are not.is irresponsible and malicious in the extreme. Indeed, making such a statement when the person has reason to know that it is false may well be libelous. Surely university administrators, faculty members, and student leaders on a .diversity. panel should be extremely wary of making any kind of unfounded, racially-charged comments about the character of students.

Further, Vice Chancellor Gargano's comments on the situation are both confused and conflicting. At the very same .diversity panel. that called the students the .KKK Nine. and at which he urged the students accused to resign unless they wanted him to force them out, Gargano was quoted as saying, "Sanctions can range from warning to dismissal, but in this world everyone has the right to free speech. We may not like that but that's the law."

This statement conflicts with both itself and with Gargano's earlier comments. If UMass can enforce sanctions ranging from warning to dismissal for speech, speech can hardly be considered .free.. The essence of free speech is that one is not punished for one.s expression. Therefore, to say that .in this world everyone has the right to free speech. is not only untrue on a global scale but is untrue even for those UMass students who find themselves under the jurisdiction of Vice Chancellor Gargano. Further, his comment that .[w]e may not like that [everyone enjoys free speech rights] but that.s the law,. indicates that Gargano believes that he and his audience share a belief that free speech is less important than preventing .offense.. If true, this lack of respect for fundamental American freedoms is certainly a disturbing revelation about UMass Amherst administrators and students.

UMass Amherst's Double Standard for Free Expression

UMass Amherst is guilty of breathtaking double standards. According to the strange logic of UMass, it is perfectly acceptable for administrators, faculty, and student leaders to falsely accuse other students of racism and falsely accuse them of sympathy for one of America's most despicable private organizations, but it is somehow .harassment. for a student to draw a mocking caricature of a Klan member on a dry-erase board. This hypocrisy and selective outrage cannot be defended either in the court of public opinion or in a court of law.

Even more telling, UMass's response to this incident differs dramatically to its response to one of the most offensive and controversial public statements made in America since the September 11 attack. Less than two months after the party in question took place, UMass Amherst graduate student Rene Gonzalez penned a column in the Daily Collegian that called NFL player-turned-Army Ranger Pat Tillman, who had just been killed in Afghanistan, an "idiot," saying that "this was a .G.I. Joe. guy who got what was coming to him" and who was "probably acting out his nationalist-patriotic fantasies forged in years of exposure to Clint Eastwood and Rambo movies." This column made national headlines, and, according to some sources, resulted in death threats against Gonzalez.

UMass, however, rightly refused to take official action against Gonzalez. In an admirable demonstration of the axiom that the best answer to bad speech is more speech, UMass system president Jack Wilson issued a statement denouncing the article as "a disgusting, arrogant and intellectually immature attack on a human being who died in service to his country," and requested that Gonzalez apologize to Tillman's family, which he eventually did. In the same statement, however, President Wilson affirmed Gonzalez's right to free speech, stating, "While I recognize Rene Gonzalez's right of free speech, I must also assert my right of free speech to criticize what he said." On the UMass campus, the Daily Collegian invoked the First Amendment in defense of its decision to publish the "offensive" column.

Unfortunately, the most likely explanation for the vast difference in the treatment of Rene Gonzalez and the nine party attendees is political. A columnist who was an outspoken opponent of the wars in Iraq and Afghanistan was treated with respect for his First Amendment rights, while some partygoers who opposed a set-aside of student government seats for minority representatives are being publicly threatened and slandered as the "KKK Nine" by members of the UMass Amherst administration and student government leadership. Indeed, many of the same individuals who rightly defended Mr. Gonzalez.s free speech rights now cry out for criminal charges against the students in this case.

While the treatment of the students involved in this case has been unwarranted, unconstitutional, and in some cases shameful, it is not too late for the University of Massachusetts Amherst to take steps to defend free speech and due process. UMass Amherst should immediately drop all harassment charges against the nine partygoers, drop any charges that it would not have asserted against partygoers in a similar situation had the caricature not been in evidence, and reject the idea that the presence of the caricature is any ground for an increase in the severity of punishment for any offenses that might be proven.

Because of the extremely urgent nature of the situation and the fact that students are facing hearings on the matter very soon, FIRE requests a response by Monday, October 11. If we do not hear from you by then, we will assume that UMass Amherst intends to proceed with the charges as stated and we will use all of our media and legal resources to combat the UMass Amherst administration's dismissal of the First Amendment and due process rights of its students.

Sincerely,

David French

President

cc:

Jack Wilson, President, University of Massachusetts

Michael Gargano, Vice Chancellor of Student Affairs and Campus Life, UMass Amherst

Jo-Anne P. Vanin, Associate Vice Chancellor of Student Affairs and Dean of Students, UMass Amherst

Gladys Rodriguez, Associate Dean of Students, UMass Amherst

Paul Vasconcellos, Assistant Dean of Students, UMass Amherst