Archive for November, 2009

Thought Reform at the University of Minnesota?

November 24, 2009

If you attend a public university or work for a public employer, and you ever hear the term “cultural competence,” it’s time to get your favorite constitutional lawyers on speed dial. Thought reform is incoming.

Faced with stubborn educational achievement gaps, it looks like the University of Minnesota’s “Race, Culture, Class, and Gender Task Group” believes the answer lies in forcing teachers to adopt a radically Leftist view of society

Continue reading “Thought Reform at the University of Minnesota?”
By David French

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Eternal Vigilance is the Price of Liberty

November 23, 2009

What would you do if you found yourself face-to-face with injustice? 

An Iranian student named Mahmoud Vahidnia recently gave a new meaning to the phrase “speaking truth to power”.  During a question-and-answer forum at his school, Sharif Technical University, Vahidnia was given the opportunity to ask a question of supreme leader Ayatollah Ali Khamenei.

That courageous student used the opportunity to criticize the most powerful man in his country to his face—a country that recently sentenced some individuals involved in the post-election protests to death, and is well known for jailing and torturing political opponents and critics (including students).

As the AP reports (h/t Candace DeRussy at Phi Beta Cons):

The session began with a speech in which Khamenei told the students the “biggest crime” was to question the results of the June 12 presidential election that returned hard-liner Mahmoud Ahmadinejad to power. Khamenei himself declared Ahmadinejad the victor despite opposition claims of widespread fraud.

After the speech, Vahidnia raised his hand, then for 20 minutes he criticized the Iranian leader over the fierce crackdown on postelection protests, in which the opposition says 69 people were killed and thousands were arrested.

In brief excerpts broadcast on state TV, the thin, bespectacled Vahidnia was shown standing behind a podium, gesturing at times for emphasis.

“I don’t know why in this country it’s not allowed to make any kind of criticism of you,” said the student, wearing a long-sleeved blue polo shirt and appearing calm.

“In the past three to five years that I have been reading newspapers, I have seen no criticism of you, not even by the Assembly of Experts, whose duty is to criticize and supervise the performance of the leader,” he said, referring to the clerical body that chooses the country’s supreme leader.

This young student has become an unlikely hero overnight in Iran.  Khamenei has the power to do virtually anything he likes to Vahidnia in retribution for his criticism, but faced with the rare opportunity to speak directly to this man, Vahidnia chose to use it to speak out for liberty, despite the potentially catastrophic costs.  What bravery.

We are extraordinarily blessed to live in a country where we do not have to fear imprisonment for questioning our leaders.  But we are not immune to injustice, and too often, we find that many students are afraid to stand up to abuses of power.   Unfortunately, most universities will not change their ways when someone simply asks nicely.  Instead, it often takes a lawsuit — in some cases, it takes multiple lawsuits — to get public universities to comply with the Constitution.  And even when there is no censorship by the government, there are many students who self-censor out of fear, and take their rights for granted.  (David French previously wrote about this problem here). 

Without students brave enough to stand up for their constitutional rights, we are powerless to do anything to defend against the increasing curtailment of freedom on many university campuses.  And without students brave enough to exercise their constitutional rights, the First Amendment will become meaningless on campus.

Vahidnia stood before the supreme leader and spoke up for freedom, despite the fact that it could cost him his life.  In this country, we may not fear death as a punishment for standing up to the authorities—but we stand to lose that freedom if it is not jealously guarded.

Sacramento City College student body president reinstated, recall results voided

November 13, 2009

Sacramento City College has reinstated Steve Macias, student body president, after receiving a demand letter from the ADF Center for Academic Freedom on November 5.  Macias was the target of an unlawful recall election and frivolous student government resolution suspending his duties, simply for refusing to censor a pro-life group on campus–on Constitution Day, no less.  A full rundown of the facts is available here and here

This is a victory for every student government official who respects the First Amendment and should be a strong warning to rogue students on the College’s Associated Student Government who sought to remove Macias. 

Unfortunately, the Sac City Express is reporting that someone on the ASG still has no appreciation for the First Amendment and has filed an impeachment complaint against Macias.  These ASG members need to be aware that as state actors, they can be liable for constitutional injuries they impose on students at the College.  The ADF Center for Academic Freedom will continue to monitor this situation and ensure that the College ceases its campaign of retaliation.

Is the Supreme Court Getting Ready to Rule on the Rights of Campus Student Groups?

November 13, 2009

Observers of the United States Supreme Court are noting the unusually-long scrutiny the justices are giving to Christian Legal Society v. Martinez, the case where the University of California-Hastings (in San Francisco) denied permission to the Christian Legal Society to meet on campus because it ran afoul of its nondiscrimination policy, as ADF has seen on other university campuses.  Specifically, CLS requires its leadership to agree with the Christian group’s statement of faith in Christ and to obey the Bible’s teachings to abstain from sexual relations outside of marriage, defined as one man and one woman.  UC-Hastings claims CLS engages in “religious discrimination” because atheists and Buddhists cannot become leaders of the Christian Legal Society.  Of course, environmentalist groups or other ideological student groups are free to require that potential officers or members agree with the viewpoints they advocate in order to join.  UC-Hastings also views CLS’s views on sexual purity before marriage as “sexual orientation” discrimination. 

The Christian Legal Society sued, claiming that UC-Hastings was violating its First Amendment right to expressive association.  The federal district court ruled against CLS.  The U.S. Court of Appeals for the Ninth Circuit also earlier this year ruled against the Christian Legal Society, in a decision shorter than a haiku.  The decision, in its entirety, states:

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group.  The conditions on recognition are therefore viewpoint neutral and reasonable.  Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).

So CLS appealed to the U.S. Supreme Court.  The respected SCOTUSblog highlighted this case as an important one to watch at the Supreme Court.  According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September.  But no one imagined that by mid-November we would still be waiting for the Supreme Court to act.  Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices).  A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.

However, the Supreme Court has now delayed deciding what to do with the case for six conferences.  This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his blog about what is going on with the case.

The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case.  Calling for the record is also an odd and unusual step for the justices to take.  What is going on here?  Are the justices agonizing over some issue or fact?  Are they struggling to reach a consensus on what to do with the case?

For what it’s worth, here is my speculation.  We know for sure that at least one or more justice is interested in the case because it takes a conscious, affirmative act by the justices to pull a case off the orders list, especially when it happens six times in a row.

Possibly, the justices want to examine the record to see what exactly is UC-Hastings’ policy.  UC-Hastings has shifted between two positions on what its policy is.  At times in the litigation, the University has claimed that it singled out CLS for exclusion from campus becasue CLS was “guilty” of religious and “sexual orientation” discrimination by the way it limits its membership to conform with its beliefs.  At other times, UC-Hastings has stated (as the Ninth Circuit’s decision reflects) that its policy was to require all student organizations to accept any students as members.  So the vegetarian club would have to accept deer hunters and steak lovers as members, the Socialist club would have to accept free market libertarians as members, etc.

The latter policy (all groups must accept any student as a member) is massively overbroad and shockingly unconstitutional.  The University cannot possibly justify a policy that prohibits all students from forming any group limited to like-minded individuals.  If the Supreme Court accepts the case for review and addresses that policy, we might have a 9–0 reversal of the Ninth Circuit.  But is that the policy UC-Hastings has or not?  Maybe that is why the high court has called for the record from the lower courts.

ADF has other cases in the pipeline that the Supreme Court could take to address the more limited question of how the nondiscrimination policy banning religious and “sexual orientation” discrimination apply to private student groups meeting on a public university campus.  The Supreme Court does not necessarily need to address that question in the UC-Hastings case.

So, what will happen?  Will the Supreme Court grant review and hear oral arguments?  Will it summarily reverse and reject the horribly unconstitutional policy of UC-Hastings requiring all student groups to accept any student?  Will it simply deny review after examining the case for weeks?  And when will that happen?  We simply don’t know, so the speculation mounts.  Maybe we will get some clarity from the Supreme Court on Monday, but who knows?  Stay tuned.

Wash U censors rally to remember fall of Berlin Wall

November 10, 2009

My graduate school alma mater is back in the limelight for censoring student speech.  This time, Washington University in St. Louis shut down a student event commemorating the 20th anniversary of the fall of the Berlin Wall and the triumph of liberty over tyranny.

It seems that nothing has changed at Wash U.  Campus censorship is still in vogue now as it was years ago.

Fear and trembling

November 10, 2009

Not only is it Søren Kierkegaard’s seminal work, but it also exemplifies the feeling of many faculty members at public universities after the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which held that public employees do not have any First Amendment protections when performing job duties.  A few lower federal courts have used Garcetti’s holding to uphold the censorship of public university professors (albeit in situations outside the classroom), despite the fact that the Garcetti’s majority opinion included the following caveat:

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

As a result of the lower court decisions, the American Association of University Professors announced a campaign today to restore faculty speech rights by working with universities to make internal policies more protective of free speech.  The AAUP recommends adopting a speech policy similar to that at the University of Minnesota, which states:

Academic freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the university. Academic responsibility implies the faithful performance of professional duties and obligations, the recognition of the demands of the scholarly enterprise, and the candor to make it clear that when one is speaking on matters of public interest, one is not speaking for the institution.

This is a good start, but will still like result in universities applying the policy selectively to faculty members who speak outside the campus orthodoxy. For example, June Sheldon’s employment as an adjunct faculty member was terminated because a student complained about being offended by what Ms. Sheldon said in the classroom.  And what did Ms. Sheldon say?  In teaching a human heredity class, she was asked about the relationship between human heredity and homosexual behavior.  She answered the student’s question by teaching the material in the textbook (the nature v. nurture debate) and quoting from an outside resource that was mentioned by the textbook.  Her answer was certainly “relevant” under the Minnesota policy and it was on a matter of “public concern.”   But whether she would be protected under the policy would still be left to campus administrators.

In order for true change to occur and for faculty to feel protected once again in the classroom, state and federal courts need to start embracing the Supreme Court’s 1967 concept that “safeguarding academic freedom. . . is of transcendent value to all of us.”  Some federal courts of appeal, like the Sixth Circuit, have done just that and have given faculty significant protections to speak in the classroom and on campus.  But only when more “knights of faith” stand up to protect their rights will the Supreme Court be able to weigh in on the topic and provide the lasting change that faculty need.

Recalling the First Amendment

November 9, 2009

Sacramento City College celebrated Constitution Day this past September with a host of speakers and events, all geared toward remembering our Nation’s social compact and discussing its relevance today.  The event included the distribution of free pocket constitutions.  Unfortunately, a few students and administrators didn’t get a copy, or, at least, didn’t read it.

A few weeks before, a group called the Genocide Awareness Project applied to the Associated Student Government for permission to participate in Constitution Day and set up a display on September 16-17.  The ASG approved the application without investigating who GAP is.  When GAP showed up on September 16, the students and administrators learned that, gasp, GAP was a pr0-life organization.  Two administrators immediately contacted the ASG President, Steve Macias, and demanded that he tell GAP to leave campus.  Mr. Macias refused because GAP had a constitutional right to speak and obtained proper permission to do so. 

The administrators recognized the irony in their request–attempting to censor a group based on its viewpoint the day before Constitution Day–and agreed with Mr. Macias, right?  Wrong.  They continued to demand that GAP leave, or turn its signs inward so students could not see them. 

A few days later, a petition circulated around campus to recall Mr. Macias because he refused to censor GAP.  Under ASG’s constitution and bylaws, once enough signatures are collected and validated by the judicial branch, the commissioner for student affairs sets a date for the recall vote on campus.  Instead of following these procedures, ASG’s advisor simply approved the signatures on his own and set a recall vote date.  The date was later reset after Mr. Macias complained to the College president.  But instead of realizing their previous procedural errors, the ASG then held a meeting that violated state law and voted to set a new date for the recall vote.  Not only that, but ASG officials made untrue statements about Mr. Macias to the campus newspaper and passed an illegal resolution trying to divest Mr. Macias of his presidential duties. 

Instead of applauding Mr. Macias’ leadership in defending the First Amendment rights of others, students and administrators at the College are not just trying to recall a student body president, but the ideas and principles of the First Amendment itself.  As a result, last Friday, the ADF Center for Academic Freedom sent a demand letter to the College, asking it to invalidate the illegal recall and protect Mr. Macias’ rights.  It’s time for the College to remember what our Constitution says.

The Free Speech “Porch” at Tarrant County College vs. the U.S. Constitution

November 6, 2009

As the Associated Press reported  yesterday (h/t Inside Higher Ed), an attorney affilated with FIRE filed a lawsuit on behalf of  the two students at Tarrant County College challenging onerous speech restrictions on campus.

The students, Clayton Smith and John Schwertz Jr., wanted to participate in a nationwide demonstration next week known as an “empty holster protest,” which advocates for concealed carry on college campuses.  (ADF takes no position on this issue)  But school officials have limited the protest to the tiny “free speech zone” on the front porch of the student center.  The students are also prohibited from handing out fliers anywhere on campus except behind a table on the porch, according to the complaint filed in the United States District Court for the Northern District of Texas.  Administrators also told the students that they could not wear empty holsters on campus, basing their decision on their right to control the time, place and manner of speech on campus.  Memo to TCC: regulating the time, place or manner of speech does not give you the right to censor speech altogether, and time, place and manner restrictions on a college campus must meet strict criteria in order to comply with the First Amendment.  Simply deciding that you don’t like the students’ protest and disallowing it for that reason violates the Constitution.

TCC  policies also require students to apply for a permit before any expression may occur on campus–a classic prior restraint.  Prior restraints are presumptively unconstitutional, and a policy requiring students to get permission before they may engage in any expression on campus is no exception.

 The free speech aspects of this case remind me of one that the ADF Center for Academic Freedom litigated against the Yuba Community College District last year on behalf of Ryan Dozier, who was threatened with expulsion by the campus police and the college president  if he continued to engage in speech on campus without a permit.  (The case was named Academia’s Number One Abuse of 2008 by Young America’s Foundation).  The policies there required a student to apply for a permit 14 days in advance, and limited speech on campus to one small area on campus during only one hour on Tuesdays and Thursdays.   

Thankfully, YCCD officials quickly changed their policies to comply with the Constitution and settled the case, but one wonders if TCC officials will do the same, since they claim that their policies are “practical, enforceable and aligned with state and federal laws.”  Federal law on these issues has been clear for quite some time, so it is difficult to understand why so many colleges continue to maintain policies that clearly violate the First Amendment.  It seems the only way some schools will learn is through litigation—and through the courage of students like Ryan, Clayton and John, who are  brave enough to stand up for their rights on campus.

Charges dropped against University of Calgary pro-life student group

November 4, 2009

The Canadian government dropped trespassing charges today against six members of Campus Pro-Life at the University of Calgary.  The students were charged with trespassing after they refused to turn pro-life billboards inward during a campus display in November 2008. 

I’ve previously commented about the outrageousness of this situation, but it is worth noting the simplicity of the students’ defense:  “‘It confirms our position that we do have the right to be on our own campus,’ said club president Leah Hallman.”  How sad that the students had to suffer trespassing charges and retain a lawyer just to fight for the right to speak equally and freely on their own college campus. 

The government made the right call in this case, but the University and the police should never have brought these charges.  Unfortunately, the University told reporters that it will take time to “reflect on this development.” 

Let me offer a possible reflection:  protect the marketplace of ideas by allowing all speakers equal access to the campus and do not censor viewpoints, no matter how much they dislike it.