free speech

In what’s being hailed as a “victory for free speech,” the University of Oregon has “dropped the unconstitutional conduct charges it filed against a student based on a four-word joke wholly protected by the First Amendment,” the Foundation for Individual Rights in Education announced Thursday.

“We’re pleased that the student is no longer weighed down by these chilling disciplinary charges and can focus on her education,” said Peter Bonilla, director of FIRE’s Individual Rights Defense Program, in a statement. “UO’s quick action here illustrates something we’ve long recognized at FIRE: Universities are seldom able to defend in public what they try to do in private.”

As The College Fix previously reported:

A University of Oregon female student visited some friends at a dorm in June, saw a couple walking outside, and decided to razz them by yelling out the window: “I hit it first!” The gal she yelled down at called back: “F*ck you, b*tch.”

The Assistant Residence Life Coordinator, informed of the situation, hunted the jokester down, and she apologized to the couple. End of story, right? Wrong.

A “Notice of Allegation” to the student, who has asked to remain anonymous, accuses her of: community disruption; a housing violation; harassment; university disruption; and disorderly conduct. It requires her to set up a hearing to determine her innocence or guilt by mid-October.

Read FIRE’s full announcement.

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Even when it’s tough to find a liberal or a Democrat (outside of Texas, mind you) who doesn’t think the lawsuit against Texas Governor Rick Perry is frivolous, you can still count on a student newspaper op-ed to buck the trend.

Case in point: Chelsea Hernandez’s piece in the USC Daily Trojan:

On Aug. 15, Perry was indicted on two felony counts for abuse of power. He allegedly tried coercing Democratic District Attorney Rosemary Lehmberg into resigning by publicly threatening to dismantle a public corruption unit she headed — all because she had pleaded guilty to drunk driving in 2013. In his attempts to control the unit and force a public servant to step down, Perry crossed an ethical line.

Ironically, Perry, not Lehmberg, seems to be the one who has truly “lost the public’s confidence.” Though his supposed intentions for wanting Lehmberg to step down seem moral, his actions say otherwise. By threatening to eliminate an important governmental unit just to force a public official to resign because of her personal past, Perry went too far. He not only abused his power as governor, but also lost the country’s trust — a dire misstep if he hopes to run for president in 2016.

On what basis does Ms. Hernandez claim that Perry has “lost the public’s confidence?” Here’s a Houston Chronicle headline: Poll: Perry favorability up among Iowa Republicans amid indictment. The Dallas News reports that the Texas governor’s indictment actually bolstered his appeal among GOP voters in New Hampshire, a key early presidential campaign battleground.

Ms. Hernandez concedes that Perry has the right to free speech (threatening a veto for the funding of Ms. Lehmberg’s unit) but says the governor, by using the threat of his constitutionally granted right of veto, “essentially blackmailed a public official into resigning.”

The veto threat couldn’t have been because of the ethical problem of someone with a drinking problem (and a DUI and belligerency towards police officers after arrest) leading a public corruption unit, could it?

Nope. It was because Perry “would have had the ability to assign a Republican to take her place, which could have further helped his political career.”

Given all the hyperbole about Governor Perry, Ms. Hernandez offered … nary a word about the “professionalism,” “ethics” and “abominable” behavior of D.A. Lehmberg.

Read the entire editorial here.

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A female University of Oregon student is facing a litany of code of conduct violation charges for a joke razzing another student.

In fact, she faces more charges – five – than words in the actual joke itself, which was: “I hit it first.”

What happened, according to detailed letters released Tuesday by the Foundation for Individual Rights in Education, was a University of Oregon female student visited some friends at a dorm in June, saw a couple walking outside, and decided to razz them by yelling out the window: “I hit it first!” The gal she yelled down at called back: “F*ck you, b*tch.”

The Assistant Residence Life Coordinator, informed of the situation, hunted the jokester down, and she apologized to the couple. End of story, right? Wrong.

A “Notice of Allegation” to the student, who has asked to remain anonymous, accuses her of: community disruption; a housing violation; harassment; university disruption; and disorderly conduct. It requires her to set up a hearing to determine her innocence or guilt by mid-October.

“The University of Oregon’s absurd overreaction is the real joke here, and it’s not very funny,” said FIRE Senior Vice President Robert Shibley in a news release Tuesday. “Using an unconstitutional speech code to punish a student for a joke shows how out of control censorship has become on our campuses in the name of making everyone feel ‘comfortable.’ ”

FIRE has taken up the student’s cause, demanding the charges be dropped.

“The charges … violate her rights to free expression and unacceptably chill the speech of UO students generally in violation of both the United States and Oregon constitutions,” the organization stated in an Aug. 1 letter to campus President Michael Gottfredson, adding:

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court set
forth a strict definition of student-on-student (or peer) harassment. In order for student
conduct (including expression) to constitute actionable harassment, it must be (1)
unwelcome, (2) discriminatory on the basis of gender or another protected status, (3)
directed at an individual, and (4) “so severe, pervasive, and objectively offensive that it can
be said to deprive the victim of access to the educational opportunities or benefits
provided by the school.” … By definition, this includes only extreme and typically
repetitive behavior—conduct so serious that it would prevent a reasonable person from
receiving his or her education. Although the Davis formulation was crafted by the Court in
the context of sexual harassment, its requirement that harassment be so severe, pervasive,
and objectively offensive that it substantially interferes with the victim’s ability to receive
his or her education is instructive in the general harassment context as well. …

[The student's] single four-word comment to the complaining students comes nowhere close to approaching the level of severity and pervasiveness required by Davis. A single, momentary communication can hardly be said to be either severe or pervasive, and it is difficult to imagine how any reasonable person’s education would be substantially interfered with by such a fleeting, mildly offensive comment. …

The harassment policies under which [the student] was charged are unconstitutionally overbroad in numerous ways. A statute or law regulating speech is overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)

“It is remarkable that the university apparently didn’t give a first thought to this student’s First Amendment rights before throwing the book at her and allowing these unconstitutional charges to hang over her head for the entire summer,” said Peter Bonilla, director of FIRE’s Individual Rights Defense Program, in a news release Tuesday. “Incoming and returning UO students should be aware of the lack of regard shown by the university for their right to free speech.”

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Jonathan Adler at The Volokh Conspiracy discusses the case of Steven Salaita, the former Virginia Tech professor who had been offered a gig at the University of Illinois-Urbana Champaign.

Salaita’s U. of Illinois job offer was abruptly rescinded after he had made a series of hateful tweets about Israel and defenders of that country. (The College Fix has numerous articles about the situation.) Immediately, many spoke out in favor of Salaita’s right to free expression — his “academic freedom,” if you will. The support comes from both sides of the political spectrum, but has been most vociferous on the left.

Some of the pro-Salaita free speech arguments are persuasive (like FIRE’s Adam Kissel’s), but I find myself more in Adler’s corner. He writes:

I largely share [Northwestern University law Professor Steven] Lubet’s views. His point about the disingenuous (or uninformed) characterization of the tweets in question is particularly well taken. As he notes, when defending Nazi marchers in Skokie, Ill., “the ACLU never soft-pedaled the Nazis as merely passionate critics of international banking.” I agree with Lubet that an academic should not be fired or denied a job offer, because of his or her political views, but I also question whether someone with Salaita’s record of hateful and offensive rhetoric is capable of being an effective academic and educator.

That last line really sticks with me. Trained in my last college undergrad years as a social studies educator, my (high school placement) cooperating teacher (amazingly, a conservative) was adamant about never allowing his personal opinions to leak into class discussions. He even outright refused to offer them when directly asked about them by students, in and out of class.

And these were mere opinions. We’re not even talking about outrageous/vulgar/profane remarks in public forums.

Imagine if you were a Jewish student in one of Salaita’s classes. What if his class was a requirement for your major? You think you’d get a fair shake knowing he knew you were Jewish? Or even worse, Israeli?

Which brings me to another aspect of this situation which really gets me: the brazen hypocrisy of “progressive” (I usually use quotes with the term because all-too often contemporary progressives are anything but) academics. They’re often right on the front lines in the effort to abolish speech they do not like …  often dubbing it “hate speech.” Speeches against affirmative action are “racist” (or, at least “racially insensitive”), people against abortion are “anti-women,” and those in favor of traditional marriage are “homophobic,” are a few examples.

Yet, Salaita’s vulgar anti-Jewish/Israel tweets were instantly defended by “progressives.” “Academic freedom,” you see.

If Salaita’s remarks are to be inviolate due to academic freedom, would Salaita’s defenders say the same regarding a white supremacist professor? How many of you reading this believe they would?

There’s a substantial difference between having a political opinion … and gross inappropriateness. Salaita’s feelings about Israel and Jews could have been offered in a much more seemly manner; indeed they should have been, given his position.

This being said, I admit this is a difficult arena in which to tread. Too broad a brush should not be used in making judgments; each instance, including that involving Professor Salaita, needs to be considered individually and carefully.

Dave Huber is an assistant editor of  The College Fix. Follow him on Twitter @ColossusRhodey.

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They’ve been ordered not to hand out copies of the U.S. Constitution. They’ve been denied promotions because of their faith. They’ve been forced to help pay for abortion-inducing birth control. They’ve been judged solely by the color of their skin.

And they’re fighting back. And they’re winning.

Conservative and Christian students and professors who have been denied free speech or faced discrimination and religious persecution because of their beliefs have recently enjoyed a string of courthouse victories in what’s amounting to something of a banner year for such causes.

There’s been at least six big legal wins in as many months.

Take University of North Carolina-Wilmington criminology Professor Mike Adams, who was denied a promotion after he became a vocal Christian. Last month, Adams won a retroactive promotion and back pay, as well as $700,000 in legal fees, in a decision that capped off a seven-year court battle.

And then there was Modesto Junior College student Robert Van Tuinen, who was told he could not hand out copies of the constitution – on Constitution Day – by campus administrators. In February, campus leaders agreed to pay Van Tuinen $50,000 and revise its policies as the result of litigation.

Free speech on college campuses also scored an indirect victory in a Supreme Court decision earlier this summer concerning “false statements” in an Ohio congressional race.

As for affirmative action, in Schuette v. Coalition to Defend Affirmative Action, a high court ruling in April effectively signaled that the days of race-based admission preferences in colleges could be numbered, and are definitely vulnerable.

Last month, the high court gave the evangelical Wheaton College the injunction it wanted against the Affordable Care Act’s contraception mandate, setting a national precedent on the matter.

Wheaton was among dozens of Christian and Catholic universities to file suit against the federal mandate, saying they should not be forced to pay for birth control if it violates their religious beliefs. Now the White House is writing new regulations to allow for such exemptions.

The conservative law firm Alliance Defending Freedom was not only successful at representing Adams in the UNC-Wilmington case, but it also this year successfully defended a Virginia community college student named Christian Parks, who was told by school officials to stop sharing his faith on campus.

As a result of the Parks’ lawsuit, the entire Virginia Community College System recently consented to a court order that prohibits it from enforcing unconstitutional speech policies and zones.

“It’s encouraging that we are seeing courts uphold this fundamental First Amendment freedom in the places where some of the greatest ideas and movements in history have been birthed,” Kerri Kupec, a spokeswoman for Alliance Defending Freedom, said in an email to The College Fix.

With the Adams and Parks victories, “everyone wins and freedom of speech expands for all, regardless of where one falls on the ideological spectrum,” Kupec added.

Last year, the firm also successfully defended the rights of Louisiana State University pro-life students, ensuring they have the right to distribute their material anywhere on campus, not just within a small radius.

More court battles are also underway.

In July, a massive litigation campaign was launched against public colleges that retain unconstitutional speech codes, an effort headed up by the Foundation for Individual Rights in Education.

“We’ve been hesitant to go the road of being primarily a litigation group,” but over the past couple years FIRE has realized “we’re not achieving enough” just by public education, FIRE President Greg Lukianoff said in a press conference.

FIRE also played a role supporting Modesto Junior College student Van Tuinen.

And the Alliance Defending Freedom has filed numerous lawsuits in the past several months to defend conservative and libertarian students and causes.

For example, Boise State University was sued recently by the firm for requiring prolife students to use warning signs when they protest abortion on campus with graphic images of aborted babies.

It also filed suit against the University of Georgia for having a free speech zone that amounts to about one-percent of the campus. And it hit Cameron University with a lawsuit following an allegation that the school’s “Equal Opportunity Officer” refused to allow a student to distribute fliers warning peers about an alleged religious cult on campus.

At UCLA, officials discriminate against students of color in favor of other students of color in admissions practices, and the campus may become the target of the latest litigation to halt racial preferences.

Over in Texas, attorneys for Abigail Fisher in Fisher v. University of Texas at Austin – another race-based admissions lawsuit – are now talking about suing Harvard University under the claim that any college that receives federal funds, public or private, cannot use affirmative action.

So said Tim Groseclose, the UCLA professor who wrote the book Cheating, which details the campus’ race-based admissions practices. He made the comments in a mid-June interview with law professor Glenn Reynolds, who agreed more litigation is in the offing.

“I have been noting more and more lawsuits against universities on a wide variety of grounds are succeeding,” Reynolds, a University of Tennessee law professor, said in his InstaVision interview with Groseclose.

Reynolds continued, “I can’t help but feel that as the higher education industry in general kind of looks worse in the public eye – and also with all these hungry lawyers out there looking for work – that they are going to become an attractive, deep-pocketed (defendant).”

“Administrators who are used to ignoring the law, basically, and doing what they wanted without consequences are going to find quite a surprise,” Reynolds added.

Jennifer Kabbany is editor of The College Fix (Follow Jenn on Twitter: @JenniferKabbany )

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As noted yesterday and before, Palestinian professor Steven Salaita’s job offer at the University of Illinois at Urbana-Champaign was rescinded after he made numerous inflammatory tweets about Israel and its defenders.

The managing editor of The Arab Daily News thinks the university may be guilty of a hate crime as a result.

Now it gets even more interesting. The person organizing a petition to get Salaita reinstated has made some rather derisive comments about Israel herself. Professor William Jacobson at Legal Insurrection reports:

Much of the organizing has been focused on a Petition for Corrective Action on Change.org posted by Rima Merriman.

This is a BDS-motivated petition, not a petition for academic freedom for all. As I have pointed out recently, those who now invoke academic freedom to defend Salaita are among the worst destroyers of academic freedom through the academic boycott passed by the American Studies Association (with Salaita’s help) and some smaller groups.

As of this writing, the Petition has over 11,000 signatures. Most appear real, although there is some trolling in there. It’s hard to tell how many are faculty or students.

Merriman, who also is known as Rima Najjar (Merriman), is a BDS activist who calls for the destruction of Israel, and argues that Zionism is a disease.

Here are several of Ms. Merriman’s own anti-Israel tweets, as noted at Legal Insurrection:

Read the full post here.

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