Fire Fallquarterly 2013 Final

7/27/2019 Fire Fallquarterly 2013 Final

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2013 STUDENT CONFERENCE AND THE FIRE ESSAY CONTEST ANNOUNCEMENT P.8

FIRETOPPLESSPEECHCODESAT THREE

UNIVERSITIES P.4

FIRE

HELPSREINSTATE

PROFESSOR P.5

UNC TO

SUSPENDSPEECH

CODE P.6

SEXUAL

HARRASEMENT

POLICY

STALLEDP.9

U. OF ALABAMA

THREATENSPRO-CHOICE

GROUP P.10

FALL 2013

FIRE WINS!VICTORIES IN NORTH CAROLINAAND WISCONSIN


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FALL 201301

like the College Democrats or College Republi-

cans, Students or Liberty or Young Americans

or Liberty, pro-lie or pro-choice organizations,

or any number o religious or political groups.

Work with those organizations to

get your message out and resist any

attempts to silence your speech.

GET PASSIONATE: Freedom o

speech is a undamental right. Every

public college must respect it, and

most private colleges guarantee it as

well. I your college tries to silence

you, ght back! Dont simply accept

administrators claims that some

ideas are too oensive or campus.

I your speech is oensive, your peers will let

you know. The existence o civil discourse does

not depend on college administrators being able

to punish you or jokes on Facebook, despite

what they might like you to believe.

Colleges are doing their students no avors by

teaching them that they are too weak to live

with ree speech, but the unortunate act is that

many are set on this line o thinking. However,

this presents an opportunity or students who

want to experience what its like to work or

a cause, to engage in activism, and make a real

dierence in their ellow students lives. I the

culture o campus to change, students have to

do their partand FIRE is here to help makeit happen. Together, we will win the battle or

reedom on campus. Robert Shibley

Its all, and with students headed back (oror the rst time) to college, too many will beunwittingly arriving at what some have called

islands o repression in a sea o reedom. For

those students unortunate enough

to run aoul o administrators acting

as the campus speech and thought

police, the perceived reedom o be-

ing on ones own or the rst time

will come to a sudden and shocking

collision with reality.

It could be worsein act, it has been

worse. Six years ago, 75% o the 400

largest and most prestigious colleges

in America had speech codes restrict-

ing expression that, o campus, would never be

punished. Today, that number is 62%. This is real

progress, and its evidence that FIREs eorts to

convince universities to abandon illiberal speech

codes are working.

But theres much more to be done. FIRE will

continue its ght until that number reaches

zero. To make that happen, we need the help and

awareness o students. I you have children, grand-

children, nieces or nephews, or amily riends in

college, give them this list o important tips:

GET INFORMED: Look up your schools speech

code on FIREs Spotlight database at there.org/

spotlight. Learn what speech might get you introuble on your campus. Read FIREs Guides to

Student Rights on Campus, available at there.

org/guides.

GET ACTIVE: Join FIREs Student Network

at there.org/students. Sign up or a group on

your campus that engages in expressive activity,

LETTER FROMthe Senior Vice President

ROBERT SHIBLEY


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FALL 2013

FIREs advocacy eorts have been enjoyingsuccess on the state level recently, with impor-tant victories or due process and academic ree-

dom achieved in North Carolina and Wisconsin.

In August, North Carolina passed a law granting

public university students acing non-academic

disciplinary charges the right to an attorney. The

bipartisan law is the rst o its kind nationwide.

Students across America are regularly tried in

campus courts or serious oenses like thet,

harassment, and even rape. Being labeled a elon

and kicked out by your college carries serious,

lie-altering consequences. Because the stakes

are so high, students should have the benet o

an attorney to ensure the hearing is conducted

airly and by the rules, said FIRE Senior Vice

President Robert Shibley.

With the passage o this law, students at NorthCarolinas public colleges are now aorded rights

comparable to those o the states K12 students,

who or years have had the right to a lawyer

FIRE WINS LEGISLATIVE VICTORIES

IN NORTH CAROLINA, WISCONSIN

cover story

NORTH CAROLINA CAPITOL

Students across America are regularly tried in campus

courts for serious offenses like theft, harassment, and

even rape. Being labeled a felon and kicked out by yourcollege carr ies ser ious, life-altering consequences.

Because the stakes are so high, students should have the

benefit of an attorney to ensure the hearing is conducted

fairly and by the rules.


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FALL 201303

when acing a 10-day suspension or expulsion.

In contrast, students accused o crimes at schoolswithin the University o North Carolina (UNC)

system were routinely orced to represent

themselves, even when the school was rep-

resented by an attorney. (The UNC system

boasts approximately 60 lawyers in its general

counsels oces alone.)

The new law provides that students or student

organizations acing campus disciplinary charg-

es are entitled to be represented by an attorney

or, i they preer, a non-attorney advocate. It

exempts students charged solely with academic

dishonesty or students acing proceedings in a

Student Honor Court ully staed by other

students. (Only UNCChapel Hill appears to

operate such an honor court.)

In Wisconsin, Governor Scott Walker took steps

in June to preserve academic reedom by issuing a

line-item veto to strike an unconstitutional ban on

aculty speech and research rom the Wisconsin

state budget. The broad, vague ban would have

prohibited University o Wisconsin aculty romdoing any work related to the Wisconsin Center

or Investigative Journalism (WCIJ), a nonprot

journalism organization.

FIRE helped lead the charge in opposition to this

provision, writing Governor Walker twice urging

precisely this result. As we stated in our rst letter,

the prohibition was fatly unconstitutional and

so broadly written that aculty would be unable

to read or discuss articles published by the WCIJ,

to comment to WCIJ reporters on issues related

to their scholarship or on matters o public

concern, to assign WCIJ articles to students, or

to cite WCIJ work in their research.

As FIRE has long recognized, state government

has an important role to play in guaranteeing

academic reedom and students rights. FIRE is

preparing or more state-level advocacy on behal

o students and aculty members in the months

and years to come.

SPEECH CODE OF THE QUARTERFIRE is happy to announce that we have no Speech Code of the Quarter to announce!

This is because all three o our summer Speech Codes o the MonthFlorida Atlantic University,

University o Central Arkansas, and Bemidji State Universityrevised their speech codes within

weeks o being designated Speech Code o the Month, so the oending policies are no longer on

the books. This is antastic news or ree speech on campus and a big victory or FIREs Speech

Code o the Month campaign.


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FALL 2013

AUGUSTS WORST SPEECH CODE

LASTS LESS THAN TWO WEEKS

Perhaps in response to a erce controversy

on its campus regarding a proessors

classroom speech, Florida Atlantic

University (FAU) enacted a ban

on racist and religiously intol-

erant speech, a ban that earned

FIREs Speech Code o the

Month designation on August 2.

Eleven days later, on August 13,

FAU posted an updated version o

the policy that no longer contains the

unconstitutional prohibitions. The school

now bears FIREs yellow light rating.

The summer months have been a hit or FIREsIndividual Rights Education Program(IREP), which is responsible or assessing

and reorming speech codes on our

nations campuses. From June

to August, FIRE named three

policies as our Speech Codes

o the Month. Happily, ater

each institution learned that

its policies had earned these

dubious distinctions, changes

came quickly. Each university

promptly revised the code in question.

TWEETING FOR FEWER

SPEECH CODES IN JUNE

At the beginning o June, Bemidji State Univer-

sity in Minnesota had a speech code policy that

banned oensive, obscene or abusive language

that FIRE named its Speech Code o the Month.

FIRE took to Twitter to let Bemidji State and itsstudents know about the code. Just over a week

later, Bemidji State responded to us on Twitter

to say that it had removed the objectionable

language rom its code. The revised policy only

applies to unprotected conduct, and Bemidji

State now has a yellow light speech code rating.

JULY SPEECH CODE OF THE MONTH

OVERTURNED IN T WO DAYS

On July 3, FIRE announced that its Speech Code

o the Month was at the University o CentralArkansas. The Oenses Subject to Disciplinary

Action policy prohibited annoying another

personat least until FIRE intervened. Just

two days ater we named the policy Julys Speech

Code o the Month, the university told reporters

it would revise the code or the 20132014

academic year.

FIRE TOPPLES SPEECH CODES

AT THREE UNIVERSITIES THIS SUMMER

in action

above BEMIDJI STATE UNIVERSITY CAMPUS

below UNIVERSITY OF CENTRAL ARKANSAS


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FALL 201305

seriously. Nevertheless, a student in the review

session reported the joke to the UCF adminis-

tration. Jung received a reprimand letter rom

UCF the next day, suspending him rom all ...

university duties, barring him rom the Rosen

College campus, and prohibiting contact o

any nature, with any students, or any reason.

UCF additionally demanded that Jung undergo a

thorough mental health evaluation and obtain

written certication rom a medical proessional

that he was not a threat to [himsel] or to the

university community.

FIRE wrote to UCF on April 26, reminding

the university o its duty to protect Jungs First

Amendment rights. In Virginia v. Black (2003),

the Supreme Court o the United States de-

ned true threats as those statements where

the speaker means to communicate a serious

expression o an intent to commit an act o

unlawul violence to a particular individualor group o individuals. FIRE made clear that

Jungs joke in no way constituted a true threat.

Days later, UCF inormed Jung that he would no

longer be required to submit to a mental health

examination. UCF ully reinstated Jung on May

13, nearly three weeks ater it suspended him.

In a press release announcing the victory,

FIRE President Greg Lukiano said, UCF must

expunge this incident rom Jungs record andensure that neither he nor any other aculty

member or student will be punished or speech

protected by the First Amendment.

FIRE is pleased that Jungs ordeal has nally

drawn to a close, but it was simply outrageous or

UCF to have suspended him in the rst place.

This spring, FIRE helped a proessor atthe University o Central Florida (UCF)get back to teaching ater he was suspended

or making a joke reerring to a killing spree

in class.

Proessor Hyung-il Jung, a lecturer in UCFs

Rosen College o Hospitality Management,

was leading an exam review session on April

23 when, according to the Orlando Sentinel, he

stated: This question is very dicult. It looks

like you guys are being slowly suocated by these

questions. Am I on a killing spree or what?

Any reasonable observer would understand that

Jungs statement was not meant to be taken

FIRE HELPS REINSTATE PROFESSOR

SUSPENDED FOR MAKING A JOKE

in action

UNIVERSITY OF CENTRAL FLORIDA TOWER


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FALL 2013

UNC nally arrived at the same conclusion as

FIREbut only ater substantial embarrass-

ment, including a retaliation complaint led with

the ederal Department o Educations Oce

or Civil Rights. A university-sponsored out-

side investigation concluded that UNC did notengage in retaliation against Gambill or her

activism, and the university suspended the policy.

Chancellor Holden Thorp released a statement

saying the controversy had led him to careully

reexamine two issues: (1) how we can continue

to protect our students right to ree speech,

and (2) the Honor Code provision dealing with

disruptive or intimidating behavior that was the

basis o the original charge.

Despite having the chance to revise this uncon-

stitutional policy years ago at the prompting o

FIRE and its own students, UNC reused to

do so. Nevertheless, FIRE is pleased that UNC

nally understands that broad and vague restric-

tions on speech imperil student rights.

The University o North Carolina at ChapelHill (UNC) has indenitely suspended anunconstitutional speech code used against

student Landen Gambill, who drew national

attention or her public complaints about the

universitys treatment o her sexual assault

allegation against a ellow student. FIRE had

warned UNC that this speech code was uncon-

stitutional more than a year ago.

Gambill was charged with violating the speech

code or publicly speaking out against the univer-

sitys handling o her allegations. Gambill aced

a range o disciplinary outcomes, including the

possibility o expulsion, or criticizing UNCs

response ater she reported to administrators

that she had been raped by a ellow student.

FIRE had long identied the policy used to

charge Gambill, which regulates disruptive or

intimidating behavior, as a yellow light speechcode, a policy that could be used to ban or

excessively regulate speech protected by the

First Amendment. However, when the codes

constitutional problems were brought to the

attention o Vice Chancellor or Student Aairs

Winston Crisp early last year, Crisp pronounced

himsel comortable with the policy, despite

acknowledging that it could be applied loosely

and be problematic.

When Gambill was brought beore UNCs HonorCourt this February, FIRE warned that the

charges violated the First Amendment. Former

FIRE intern and UNC student David Deer-

son had already written a letter to The Daily

Tar Heel inorming administrators that the

charges against Gambill could not withstand

constitutional scrutiny.

RAPE CHARGE SCANDAL PROMPTS

UNC TO SUSPEND SPEECH CODE

TH E OL D WE LL , CE NT ER OF CA MP US , UN IV ER SI TY OF NO RT H

CAROLINA AT CHAPEL HILL


8/12

FALL 2013

2013 FIRE STUDENT CONFERENCE

on campus

07

This past July, FIRE hosted its largest student conference yet! Over 70 students

gathered from across the country at Bryn Mawr College for three days to hear

from FIRE staff , First Amendment expert Bob Corn-Revere, Fox News analyst

Juan Williams, and journalist Megan McArdle. Students participated in break-

out sessions led by FIRE staff, heard from other students who were involved in

FIRE cases or successfully changed their schools oppressive speech codes, and

had plenty of time to debate and discuss free speech with their peers.

I WOULD RECOMMEND THIS CONFERENCE IN A

HEARTBEAT! IT WAS A TERRIF ICALLY REWARDING AND

INTELLECTUALLY STIMULATING WEEKEND, AND I AM SOGRATEFUL TO HAVE BEEN ABLE TO ATTEND.

I HAD AN AMAZING TIME AND LEARNED SO MUCH. WHEN

I WAS IN THE AIRPORT WAITING FOR MY FLIGHT, I CALLED

SOME OF MY HIGH SCHOOL FRIENDS TO TELL THEM HOW

MUCH OF A FANTASTIC TIME I HAD, AND ALL THAT I LEARNED

WHILE ENCOURAGING THEM TO SIGN UP NEXT YEAR.

I GREATLY APPRECIATE THE KNOWLEDGE IMPARTED ON MEWHILE ATTENDING THE CONFERENCE AND LOOK FORWARD

TO WORKING MORE WITH FIRE IN THE FUTURE.

THIS CONFERENCE NOT ONLY ACTS AS AN EDUCATIONAL

SEMINAR BUT ALSO AS A RALLYING CALL FOR STUDENTS.

What students Have to say about FIRE!


9/12

FALL 2013

FIRE HIGH SCHOOLESSAY CONTESTFIRE is awarding $20,000 in col-

lege scholarships! Do you know

a high school junior or senior

planning on attending college

ater graduation? I you answered

yes, encourage him or her to en-

ter FIREs essay contest or a

chance to win one oNINE COLLEGESCHOLARSHIPS WORTH $10,000,

$5000, $1000, OR $500!

VISITTHEFIRE.ORG/CONTESTTO

ENTER AND FOLLOW THESE STEPS:

1. WATCH TWO FIRE VIDEOS:

Silencing U: Five Outrageous

Cases o Campus Censorshipand What Every Student Should

Know Beore Starting College.

2. WRITE AN 8001000 WORD ESSAY

answering the question: Why is

ree speech important at our na-

tions colleges and universities?

3. SUBMIT YOUR ESSAY ATTHEFIRE.ORG/CONTESTBEFORE

JANUARY 1, 2014.

We look orward to receiving your

submission!


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FALL 2013

an abuse o power or must create a hostile en-

vironment to be prohibited. Only conduct that

is suciently serious (i.e., severe, pervasive, or

persistent) and objectively oensive to restrict

a students participation in university activities

will constitute hostile environment harassment.

While an improvement rom the blueprint,

the new policy still poses First Amendment

concerns. The policys denition o discrimina-

tion includes treat[ing an] individual dierently

on the basis o 17 dierent characteristics,

including an individuals political ideas. This

denition could classiy protected speech as

discrimination. Further, in encouraging stu-

dents to report harassing behavior, the policy

suggests that students may secure no-contact

orders and changes in living arrangements on the

basis o expression that is protected under the

First Amendment. Without denite, published

standards or granting such orders, this is likelyto prove legally problematic.

The University o Montanas new policy is not

perect, but it is clearer and more cognizant o

student and aculty expressive rights than the

ederal governments May directive. That is

why the Departments ailure to approve it in

a timely manner is concerning. FIRE calls on

the Departments to approve the new policy,

retract the blueprint, and issue new, clear guid-

ance that ollows Supreme Court precedent andmandates a constitutional denition o sexual

harassment, lest other institutions mistakenly

believe they must adopt the blueprints illiberal

restrictions. Colleges and universities have a

moral and legal obligation to prohibit sexual

harassmentbut doing so does not require

sacricing core civil liberties.

The University o Montanas new sexualharassment policy, adopted in August aterthe start o classes, does not contain the broad

denition o sexual harassment that sparked

national criticism led by FIRE. Drated in

consultation with the Department o Educations

Oce or Civil Rights (OCR) and the Depart-

ment o Justice (DOJ), the new policy denes

sexual harassment more narrowly and promises

to comply with ree speech requirements or

students and employees.

However, as o early September, the Depart-

ments have ailed to ocially approve the policy.

The agencies approval is necessary under the

settlement agreement signed with the university

this past May.

The new policy suggests a signicant departure

rom requirements issued by the Departments

earlier this year ollowing a joint investigationinto the University o Montanas sexual mis-

conduct policies and procedures. In May, the

agencies announced a settlement agreement with

the university that included a broad denition

o sexual harassment. Proclaiming the settlement

to be a blueprint or campus sexual harassment

policies nationwide, OCR and DOJ stated that

sexual harassment must be dened as any un-

welcome conduct o a sexual nature, including

verbal conduct (that is, speech). The agencies

also rejected the use o a reasonable person stan-dard in determining whether conduct constitutes

sexual harassment.

In contrast to the blueprint, the new University

o Montana policy states that while sexual ha-

rassment can include unwelcome speech o a

sexual nature, sexual harassment must involve

DEPARTMENTS OF EDUCATION AND JUSTICE

STALL APPROVAL FOR SEXUAL HARASSMENT POLICY

rights at risk

09


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FALL 2013

UNIVERSITY OF ALABAMA THREATENS PRO-CHOICE

GROUP WITH ARREST FOR NOT OBTAINING PERMIT

FIRE wrote to UA President Judy Bonner on

May 22, reminding UA that it may not consti-

tutionally require student groups like AASRJ to

obtain permits to engage in such undamentalFirst Amendment activities as the peaceul

distribution o inormational materials. UA has

ailed to respond to FIREs letter, and AASRJs

rights remain in jeopardy.

UAs grounds-use policies and practices have

made a mess o ree expression on campus,

conusing students, administrators, and law

enorcement ocials. UAs actions highlight the

absurdity o requiring student groups to request

permits days in advance just to exercise theirree speech, orcing them to wait until their

message has become yesterdays news beore

being granted the right to speak. The university

must act quickly to rectiy its errors and clariy

its policies beore another student group nds

itsel burdened with unconstitutional restrictions

and threatened with unlawul arrest.

FIRE intervened at the University o Alabamaater campus police ordered a pro-choicestudent group to cease distributing inormational

fyers on campus and threatened members with

arrest or ailing to comply with the orders.

The student group Bama Students or Lie

hosted a Genocide Awareness Project (GAP)

protest on UAs quad on April 10 and 11. GAP

protests are requently hosted on college

campuses and eature abortion-related images.

Members o the student group Alabama

Alliance or Sexual and Reproductive Justice

(AASRJ) learned o the planned event on April 9

and decided to distribute fyers to counter GAPs

pro-lie message.

AASRJ members passed out fyers on the quad

on April 10, in the vicinity o the protest, or

roughly one hour without incident. However,

The Crimson White, UAs student newspaper,reported that a woman complained to UA

police about the content o one o the groups

fyers. UA police then ordered AARSJ to end

its counter-protest. One member reported, We

were then warned [w]ithout a grounds permit,

any member distributing fiers as part o AARSJ

would be arrested.

AASRJ submitted a grounds-use permit request

to UA in order to continue its counter-protest

activities on April 11 but was inormed by a UAocial that the permit would not be approved

in time. UAs grounds-use policy states that

permits may be approved in as ew as 3 days,

but otherwise instructs that applicants or

use o other campus grounds should request

permission or such use 10 working days prior

to the event.

FLYER CREATED BY FIRE TO PROMOTE CASE


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how to reach us...

170 S. Independence Mall W., Suite 510 E

Philadelphia, PA 19106

215.717.3473 tel

215.717.3440 ax

www.there.org

Facebook: acebook.com/thereorg

Twitter: @theFIREorg

YouTube: youtube.com/thereorg

ABOUT THIS PUBLICATION

The FIRE Quarterly is published our times per year by the

Foundation or Individual Rights in Education.

The mission o FIRE is to deend and sustain individual

rights at Americas colleges and universities. These rights

include reedom o speech, legal equality, due process,

religious liberty, and sanctity o consciencethe essential

qualities o individual liberty and dignity. FIREs core

mission is to protect the unprotected and to educate the

public and communities o concerned Americans about

the threats to these rights on our campuses and about the

means to preserve them.

FIRE is a charitable and educational tax-exempt oundation

within the meaning o Section 501(c)(3) o the Internal

Revenue Code. Contributions to FIRE are deductible to

the ullest extent provided by tax laws.

Documents

Fire Fallquarterly 2013 Final