WMU Can’t Spin Away the Facts: It Has to Pay Damages and Reform Its Speech Codes

Stand Up For Speech Litigation Project plaintiff Nola Wiersma has one regret about settling her First Amendment lawsuit with Western Michigan University: She didn’t get an apology from the university for violating her constitutional rights.

We generally encourage plaintiffs to let university defendants save face and savor the fact that they have restored free expression to their campuses, vindicating their rights and those of their fellow students. In short, we advise being gracious in victory. In the case of WMU, however, that is easier said than done. If the university didn’t owe Nola and her co-plaintiffs Kestrel Peace (named as Jessica Clark in the complaint) and the Kalamazoo Peace Center an apology for its handling of the Boots Riley appearance that triggered the lawsuit (and it did), it certainly owes them one now for its churlish and misleading spin on the settlement agreement placed on record with the court on April 30, 2015.

In an article on MLive.com, WMU spokeswoman Cheryl Roland is quoted as saying that the university agreed to pay $35,000 in attorneys’ fees to settle the case “mostly to come to a quick resolution” and that “the university will not pay any damages in the case.”

Ms. Roland needs to double-check her facts. WMU is legally obligated to cut a check for $35,000 to Davis Wright Tremaine by May 15. WMU requested that it only be required to write one check and asked Davis Wright Tremaine to pass on the damages portion—$5,000—to the plaintiffs. In fact, WMU agreed to pay $2,000 more if it could combine the payments. Perhaps WMU thought it could disguise the fact it had to pay damages by writing a single check. But it can’t get around the fact that the plaintiffs will receive $5,000 to compensate them for the violation of their First Amendment rights, regardless of how its spokeswoman wants to describe the transaction.

But Ms. Roland was not done. She ended the interview with this comment:

“We don't think we did anything wrong,” Roland said. “We’ve had an opportunity to fine tune our procedures a bit but I believe that would have happened anyway without a lawsuit. We’re just ready to move forward.”

To put it mildly, FIRE begs to differ.

When a public university maintains and enforces speech codes to censor student expression, as WMU did, that’s not just “wrong;” it’s unconstitutional. If Roland and other WMU administrators truly believe that there’s nothing “wrong” with violating the First Amendment, FIRE recommends they sit in on a few of their university’s classes next year, starting with COM 5070: Freedom of Expression, PSCI 4230 - The First Amendment, and PSCI 4220 - Civil Rights and Liberties.

And WMU’s procedures weren’t just “fine-tuned.” Anyone familiar with FIRE’s work defending student and faculty rights knows we don’t settle for “fine-tuning” wholly unconstitutional speech policies. When we support student organizations like the Kalamazoo Peace Center in filing lawsuits to vindicate their constitutional rights, we secure wholesale revisions and full compliance with the First Amendment. After all, the law is on our side; even our critics admit that “most of the time when they [FIRE] take on a campus they're right."

The settlement will be public by May 15, and then people can judge for themselves. In the meantime, it’s worth noting that the settlement discussions on April 30 started at 2:16 p.m. and ended at 7:34 p.m. “Minor” policy changes don't typically take more than five hours of negotiations to hammer out, but multiple policies requiring substantial revisions might.

Here’s a quick overview of the core changes agreed to in the settlement:

• WMU now has a written policy spelling out when security fees may be required and on what grounds—depriving administrators of the unbounded discretion they abused in the Boots Riley debacle.
• Students and the community can now express themselves in outdoor common areas on campus without first having to get official permission to speak.
• WMU must regulate the use of public indoor spaces based only on explicit, viewpoint-neutral criteria rather than concerns about the content of the event.
• The flyer/poster policy now expressly allows leafleting and handing out flyers on campus common areas without advance permission, and flyers cannot be rejected simply for failing to adhere to an administrator’s ambiguous “standards of good taste.”

Are these the kind of changes that “would have happened anyway”? Of course not.

We’ve been waiting for 15 years for universities to wake up and decide for themselves (admittedly, with prodding from FIRE) that policies that curb free expression on campus should be abolished. Until that moment of enlightenment comes, FIRE’s Stand Up For Speech Litigation Project will continue to work with students and faculty to file lawsuits to compel public colleges and universities to bring their policies into compliance with the First Amendment. We’ll keep winning, too. Despite the university’s spin, our results speak for themselves.