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Policy ‘is absurd,’ transparency law expert and Penn State alumn says
Journalists and lawyers are calling for accountability from Penn State University’s Board of Trustees due to a “gag rule” it placed on its own members.
The trustees voted to amend their Code of Conduct by removing language prohibiting former board members from speaking out against the university on July 17 after three news outlets sued, alleging the policy violates individual members’ free speech, Spotlight PA reported earlier this month. However, the restriction remains in place for current trustees.
The original policy prohibited trustees and emeriti trustees from making “negative or critical public statements about the Board, the University or its students, alumni, community, faculty, staff, and other stakeholders” and required them to “coordinate all media and press interactions relating to matters that have come before the Board with the Board Office in advance.”
Transparency law expert Terry Mutchler told The College Fix that Penn State’s “approach for unified messaging from the Board is misguided and mistaken.” An alumnae of the university, Mutchler is not involved in the lawsuit.
“For a university – a cauldron of free thought and expression – to censor [the] opinion of its leaders is to skewer the First Amendment, and what our founders penned 250 years ago,” she told The Fix via email.
The trustees’ recent policy amendment appeared to be in response to the news outlets Spotlight PA, Centre Daily Times, and StateCollege.com filing a lawsuit against three of PSU’s trustees in May. They claim that the policy “unconstitutionally restrains” emeriti trustees’ free speech.
The media outlets — backed by the Reporters Committee for Freedom of the Press and the Cornell Law School First Amendment Clinic — filed the lawsuit after former trustee Alice Pope received a letter from the university accusing her of violating the trustees’ Code of Conduct for speaking out against the impending closure of seven campuses, Spotlight PA previously reported.
Following the vote, the public university’s attorneys filed a brief on July 21 arguing that the plaintiffs’ “request for preliminary relief must be denied” as they “no longer have any live injury” after the revision, according to the report.
However, several legal scholars warned that the move may be an attempt at dodging the problem at-hand.
“To me, it looks like the board leadership saw a loophole to undermine standing by nullifying the willing speaker and jumped at the opportunity,” Society of Professional Journalists attorney Anne Marie Tamburro told Spotlight PA.
Penn State communications Professor Amy Kirstin Sanders also commented on the matter, telling the news outlet: “Either the Board of Trustees didn’t carefully consider the policy the first time around … or it was a specific tactic to try to get rid of pending litigation. I tend to think it’s probably more the second because of the timing.”
The next hearing in the lawsuit is scheduled for Sept. 9, according to the report.
University spokesperson Wyatt DuBois declined to comment to The Fix in an email last week when asked about the trustees’ vote and the lawsuit. The university “generally does not comment on pending litigation,” DuBois said.
Neither of the trustees named in the lawsuit nor its plaintiffs responded to The Fix’s request for comment.
Meanwhile, Mutchler, a former journalist and expert in government transparency law, told The Fix that while she “love[s] Penn State,” it “can do better.”
“Consider what this PSU bylaw looks like in practice,” Mutchler said. She is chair of transparency law and public data practice at Obermayer Rebmann Maxwell & Hippel, a Philadelphia-based law firm.
“A board member can disagree vociferously during a board meeting and vote ‘no’ on a matter, but if approved, they must then say to the public and parent stakeholders: um the board made the right decision. And they can’t disagree? It is absurd,” she told The Fix.
“I encourage the Trustees to follow the wisdom espoused by President Neeli Bendapudi on September 9, 2024,” Mutchler continued. “She boldly spoke about an issue she herself deemed to be ‘fundamental to Penn State: free speech.’”
Bendapudi said in the speech that “free speech is a cornerstone of public universities like ours. It is what allows us to explore new ideas and challenge old ideas.”
