FIRE Quarterly, Spring 2012 by thefire

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									Volume 10 / Number 2                                                                                                                             Spring 2012

                                                         Newsletter of the Foundation for Individual Rights in Education

             In This Issue
                                                            FIRE’s 12 Worst Colleges for
              2 From the Director of Legal and
                                                                    Free Speech
                Public Advocacy                             n March, FIRE released our 2012 list of the        Syracuse’s School of Education effectively expelled
              3 Syracuse Drops Expulsion Hours
                                                            12 Worst Colleges for Free Speech in The           an education student who complained on his own
                after Press Release                         Huffington Post. Harvard is new to the list this   Facebook page about a comment that he thought
                                                       year, joining Yale, Syracuse, and the University        was racially insulting. The student was required to
              4 Ole Miss Scraps Speech Codes,          of Cincinnati at the top of the list. FIRE’s video      undergo counseling and diversity training just to
                Sets National Example by Protecting
                                                       fellow also produced a video about the list, which      earn a chance of readmission.
                Student Rights
                                                       is available on YouTube.
                                                                                                               Widener University banned a law professor from
              5 ‘Hot for Teacher’ Student Suspended
                                                       “These colleges and universities have deeply violated   campus because he had used hypothetical scenarios
                 for Writing an Essay, Appeal Denied
                                                       the principles that are supposed to animate higher      in class involving the dean. The situation was
              7 From the Campus Freedom Network        education,” said FIRE President Greg Lukianoff.         resolved in a confidential settlement only after the
                                                       “Sunlight is one of the best disinfectants, and the     professor sued the university.
              8 Eleventh Circuit Affirms Ruling
                against Former Valdosta State
                                                       public needs to know which schools to watch out
                                                                                                               Last fall, Harvard University pressured all freshmen
                President in Victory for Student       for.”
                                                                                                               to sign a morality pledge promising that they would
                                                       Although schools appear on the list in no particular    exercise “civility,” threatening academic freedom
              9 Student Group Files Suit Challenging   order, the following list names the 12 worst
                                                                                                               by announcing a code of ethics before students
                University of Cincinnati’s ‘Free       colleges in order of appearance:
                Speech Zone’
                                                                                                               had taken a single course. Also, Harvard’s licensing

              11 Fanning the Flames                                    1. University of Cincinnati             7. Michigan State University
                                                                       2. Syracuse University                  8. Colorado College
              12 The Last Word                                         3. Widener University                   9. Johns Hopkins University
                                                                       4. Harvard University                   10. Tufts University
                                                                       5. Yale University                      11. Bucknell University
                                                                       6. St. Augustine’s College              12. Brandeis University

                                                       Each of these schools earned its place on FIRE’s        office prohibited Yale’s freshman class from
                                                       list by severely violating the speech rights of         using the names of famous Harvard dropouts Bill
                                                       students, faculty members, or both.                     Gates or Mark Zuckerberg on T-shirts for the
                                                       The University of Cincinnati tops the list due to its   annual Harvard-Yale football game. In December,
                                                       shockingly restrictive free speech zone that limits     Harvard’s Arts & Sciences faculty effectively fired
                                                       certain types of student expression to just 0.1% of     a longtime professor because he had published a
                                                       the school’s 137-acre campus. The policy, which         controversial op-ed in India about ways to combat
                                                       is now the subject of a federal civil rights lawsuit,   Islamic terrorism.
                601 Walnut Street • Suite 510
                                                       threatens students with criminal prosecution for
                Philadelphia, PA 19106                                                                         Yale University remains on FIRE’s list after
                                                       violations. The university has even refused to let
                215.717.3473 tel                       students simply “walk around” outside the zone to       censoring cartoon images of Mohammed in an
                215.717.3440 fax                       gather petition signatures.                             academic book about those (continued on p. 4)

                       From the Director of Legal
                          and Public Advocacy
                                                                                                Will Creeley

                                    A         s FIRE’s Director
                                              of Legal and Public
                                              Advocacy, I spend
                                    a significant amount of time
                                    thinking about how FIRE
                                                                     Werenczak complained about the community leader’s words
                                                                     on Facebook. A few months later, before the beginning of
                                                                     the 2011-12 school year, Syracuse administrators effectively
                                                                     expelled Werenczak because of his Facebook post, despite the
                                                                     fact that Werenczak had never been charged with any rules
                                    can ensure that colleges and     violation. Just to gain the mere possibility of “readmittance,”
                                    universities suffer serious      Syracuse required Werenczak to undergo anger-management
                                    consequences for violating       counseling, complete diversity training, and author a paper
                                    student and faculty rights.      demonstrating growth “regarding cultural diversity.” Hoping
                                    This is a crucially important    to continue progress towards his degree as soon as possible,
                                    question for our work. After     Werenczak completed these requirements, but Syracuse
                                    all, if colleges conclude that   refused to review his request for readmission.
                                    they may trample on campus
                                    rights without sufficiently      Frustrated by Syracuse’s silence as weeks went by without
                                    negative repercussions, then     action, Werenczak contacted FIRE. When FIRE’s letter
    they have little incentive to comply with constitutional         of protest went unanswered, we issued a national press
    obligations (at public universities) or their own stated         release exposing Syracuse’s treatment of Werenczak. Within
    promises (at private ones). Our job here at FIRE is to make      just 90 minutes, Syracuse contacted FIRE to notify us that
    sure that violating campus rights comes at a heavy cost to an    Werenczak was going to be readmitted after all. Rather than
    institution’s reputation, and we have several powerful tools     suffer through what was surely going to be a bruising news
    at our disposal.                                                 cycle, Syracuse quickly decided to do the right thing at long
                                                                     last. As we like to say here, universities are often loath to
    Negative publicity is perhaps FIRE’s most effective means        defend in public that which they practice in private. We’ve
    of changing a university’s behavior. When it comes to public     found that this is especially true in today’s hyperconnected
    relations, the vast majority of today’s universities more closelymedia environment, and Syracuse’s lightning-quick reversal
    resemble large corporations than the centers of academic         is just one example of many. Visit our case archives (thefire.
    inquiry one might expect. They rely on slick message control,    org/archives) for more.
    extensive media management, and even
    administrative positions dedicated solely             Frustrated by                Not all universities are willing to correct
    to protecting the university’s public                                              rights violations in order to avoid bad
    image. Given this overwhelming desire
                                                      Syracuse’s silence               press. Disappointingly, some universities
    for narrative control, FIRE has found that         as weeks went by                would rather defend their decision to
                                                                                       violate student and faculty rights, even
    the threat of a damning headline about a              without action,              if doing so taints their reputation and
    university’s shocking lack of respect for
    the expressive rights of its students can be            Werenczak                  embarrasses their alumni and trustees. In
    an incredibly motivating force.                      contacted FIRE.               these cases, FIRE turns to our second
                                                                                       tool: litigation.
    A recent FIRE case at Syracuse University illustrates the
    power of negative press. In July 2011, Syracuse School of        Now to be clear, FIRE itself does not directly litigate.
    Education graduate student Matthew Werenczak was tutoring        While there are currently seven attorneys on FIRE’s staff,
    at a local middle school when he overheard a community           FIRE does not represent students or faculty, nor do we
    leader making a comment he found racist and offensive.           serve as a plaintiff. Rather, when a case (continued on p. 6)

2           Spring 2012
  Syracuse Drops Expulsion
      Hours after FIRE
       Press Release

U         nder pressure from FIRE,
          Syracuse University’s School
          of Education readmitted a
graduate student it had expelled from its
teaching program after he complained
                                             saying, “Just making sure
                                             we’re okay with racism. It’s
                                             not enough I’m ... tutoring
                                             in the worst school in the
                                             city, I suppose I oughta be
on Facebook about a racially charged         black or stay in my own
comment made in his presence by a            side of town.” Werenczak
community leader. Syracuse had told          further wrote that “it
Matthew Werenczak that his only              kind of offends me that
chance for reinstatement was to undergo      I’m basically volunteering
                                                                                                       Matthew Werenczak
a special course of diversity training and   the summer at Danforth,
counseling for “anger management”—           getting up at 630, with no              FIRE wrote Syracuse University
all because he expressed annoyance           AC, to help tutor kids and that’s not   Chancellor Nancy Cantor on January
over the community leader’s complaint        enough.”                                10, pointing out that the school’s
that student teachers were coming                                                    action profoundly violated Syracuse’s
from Syracuse rather than historically    Werenczak was summoned to a                promises in its Student Handbook that
black colleges. Within 90 minutes of      meeting with administrators shortly        “[s]tudents have the right to express
FIRE bringing his case to the public,     before the school year began, but he       themselves freely on any subject” and
Werenczak was readmitted.                 was not charged with any infraction        that “Syracuse University ... welcomes
                                          of Syracuse’s rules and never received     and encourages the expression of
“Syracuse kicked a student out of school a disciplinary hearing. On September        dissent.” Cantor failed to respond, so
for complaining on Facebook about 7, however, Social Studies Education               FIRE took the case public on January
comments he thought were racist, and Coordinator Jeffery A. Mangram                  19. Within hours, Werenczak received a
only reversed its decision in the face of sent Werenczak a letter stating that       letter readmitting him to the School of
public outrage,” said FIRE President the School of Education (SOE) was               Education. Syracuse’s separate letter to
Greg Lukianoff. “It’s long past time effectively expelling Werenczak because         FIRE attempted to place the blame on
for Syracuse to live up to its promises of his Facebook comments. In order to        the School of Education’s accreditor,
of free speech and stop treating its gain a mere chance of “re-admittance,”          the National Council for Accreditation
students as second-class citizens.”       Werenczak was required to seek anger-      of Teacher Education (NCATE).
                                          management counseling, complete
On July 20, 2011, Werenczak was diversity training, and write a paper “It’s quite disturbing that Syracuse
student teaching with Danforth Middle demonstrating growth “regarding called this ordeal the ‘standard
School when he was introduced to cultural diversity.”                            process,’” said FIRE Vice President of
a member of the city’s Concerned                                                 Programs Adam Kissel. “Is it normal to
Citizens Action Program (CCAP). Hoping to return to school as soon expel someone without issuing charges
Shortly afterward, in the presence of as possible, Werenczak fulfilled these or having a hearing, then to require
Werenczak and one other white student unjustified requirements by December psychological counseling and mandate
teacher, the CCAP member, who is 14. Weeks later, however, SOE had not diversity training for just the chance of
black, said that he thought that the city yet even formed a committee to review readmission—all because of Facebook
schools should hire more teachers from his case, and Mangram then warned comments? I doubt the School of
historically black colleges. Werenczak Werenczak not to push SOE or it Education’s accreditor will agree.”
later discussed the remark on Facebook, might “further delay the process.”

             Ole Miss Scraps Speech Codes, Sets National
                Example by Protecting Student Rights

    T        he University of Mississippi
             (Ole Miss) has eliminated its
             speech codes, earning the
    highest, “green light” rating for free
    speech from FIRE. While two-thirds
                                               FIRE began working on speech code
                                               reform with Ole Miss administrators
                                               in February 2011. Samantha Harris,
                                               FIRE’s Director of Speech Code
                                               Research, and Scott Wallace, Ole
                                                                                         Ole Miss also revised a requirement that
                                                                                         limited unplanned demonstrations
                                                                                         and expressive activities to just a
                                                                                         few designated “Speaker’s Corners.”
                                                                                         That policy severely restricted the
    of the nation’s colleges maintain          Miss’ Assistant Dean of Students, led     ability of Ole Miss students to
    policies that clearly and substantially    the effort.                               engage in spontaneous expressive
    restrict freedom of speech, Ole Miss                                                 activities on campus. Ole Miss’ new
    is now a proud exception, having           Among the policies reformed by Ole        policy now states that students may
    fully reformed four policies that          Miss was a policy that prohibited         express themselves elsewhere on
    restricted speech protected by the         “hateful” internet expression. Not        campus “so long as the expressive
    First Amendment. Ole Miss is the           only is most “hateful” speech             activities or related student conduct
    15th school nationwide to earn a           protected by the First Amendment,         does not violate any other applicable
    green light, the fifth to do so in         but reasonable people can also            University policies.” Ole Miss also
    the last two years, and the first in       disagree about what is “hateful,”         revised residence life and harassment
    Mississippi. Ole Miss administrators       leaving the definition open to            policies that previously restricted
    worked in close contact with FIRE          subjective interpretation and selective   freedom of expression on campus.
    attorneys to address the university’s      enforcement. Ole Miss rewrote
    speech codes.                              the policy to eliminate this vague        In earning its green light rating
                                               and overly broad restriction, which       from FIRE, Ole Miss joins James
    “The entire Ole Miss community—            now prohibits only constitutionally       Madison University, the University
    students, faculty, administrators, and     unprotected speech.                       of Virginia, Arizona State University,
    alumni—has reason to be proud,”                                                      and The College of William & Mary
    said FIRE President Greg Lukianoff.                                                  as the most recent institutions to
    “Ole Miss’ commitment to First                                                       have completely eliminated all written
    Amendment rights has made                                                            policies restricting protected student
    the university a shining                                                                        expression on campus.
    example of how to respect
    and protect free expression
    on campus.”

                        very cartoons, and banning an anti-
    (continued from p. 1)                                            to come prepared for a contentious meeting about the
    Harvard T-shirt that quoted F. Scott Fitzgerald referring        school’s recovery from a destructive tornado. After he
    to Harvard students as “sissies.” Yale also suspended a          sued, the college extended his punishment to ban him
    fraternity for five years for satirical outdoor chants, raised   from last fall’s Homecoming.
    eyebrows when it gave academic justifications for closing        Michigan State University, Colorado College, Johns
    down the Yale Initiative for the Interdisciplinary Study         Hopkins University, Tufts University, Bucknell University,
    of Antisemitism not long after the center came under             and Brandeis University also remain on FIRE’s “Red
    criticism for holding a conference about antisemitism,           Alert” list for the “worst of the worst” colleges for free
    and almost canceled Yale’s annual “Sex Week” because             speech. In each case, the school has severely violated free
    of its content.                                                  speech rights and has persistently refused to acknowledge
    St. Augustine’s College banned a student from graduation         its mistake. Some schools even strengthened their speech
    merely for advising his fellow students on Facebook              codes, making them even more restrictive.
4              Spring 2012
             ‘Hot for Teacher’ Student Suspended for
                 Writing an Essay, Appeal Denied

O         akland University has denied
          the appeal of a student who was
          barred from campus, suspended
for three semesters, and required to undergo
                                                                                      Snyder pressured Corlett to withdraw
                                                                                      from his winter semester classes.
                                                                                      FIRE wrote Oakland University
                                                                                      President Gary D. Russi on December
“sensitivity” counseling for authoring a class
assignment in which he stated that he                                                 16, explaining that Corlett’s creative
found his instructors attractive. While the                                           writing was fully protected under
assignment specifically permitted students                                            the First Amendment, which is
to write creatively about any topic, the                                              binding on public universities such as
university bizarrely classified his “Hot                                              Oakland University. FIRE explained
for Teacher” essay as “unlawful.” Joseph                                              that Corlett’s “germane, class-related
Corlett came to FIRE for help.                                                        expression” was protected speech.
“Oakland University made up its own                                                     Oakland University Assistant General
definition of the ‘law’ in order to punish a                                            Counsel Boyd C. Farnam replied on
student for his creative writing,” said FIRE                                            December 23, stating that Corlett
President Greg Lukianoff. “The special
                                                                         Joseph Corlett would have to face a disciplinary
irony here is that Joseph asked several times                                           hearing. Corlett was charged with
if it was really okay to write anything, and several times he    “unlawful individual activities” on the basis of the writing
was told it was.”                                                journal alone. Although Farnam had promised that Corlett
Corlett’s ordeal began in early November 2011 when he could present “whatever evidence” he deemed “appropriate
submitted his writing journal to his Advanced Critical and relevant,” Corlett was prevented from presenting
Writing professor. Her course materials describe this evidence explaining his free speech rights at his disciplinary
“daybook” as “a place for a writer to try out ideas and hearing on January 19.
record impressions and observations,” and state that it
                                                                 Corlett was found guilty and sanctioned with a three-
should contain “freewriting/brainstorming” and “creative
                                                                 semester suspension, a ban from campus with a threat of
entries.” According to Corlett, he verified with his professor
                                                                 arrest for criminal trespass if he came back, probation, and
that he could write about any topic. In other assignments
                                                                 “counseling” for “sensitivity issues” before he can ever take
in the course, he had written on sexual topics and received
                                                                 classes again.
high grades.
One entry in Corlett’s journal, titled “Hot for Teacher,” Corlett appealed with the help of attorney Brian Vincent,
quotes the 1984 Van Halen song of the same name and tells a member of FIRE’s Legal Network. His appeal was
a story of being worried about being distracted in class by evaluated by Snyder, who refused to recuse herself. Snyder
attractive professors. A separate September 23 entry states denied his appeal on March 5, asserting that Oakland was
that his professor is like Ginger from the television series not bound by “technical legal definitions and standards”
Gilligan’s Island, while another professor is like the character when punishing Corlett.
Mary Ann.
                                                                 FIRE asked President Russi to intervene on March 8,
On November 29, his professor announced to some of her reminding him of Oakland University’s legal and moral
colleagues, “Either Mr[.] Corlett leaves campus or I do.” On obligation to respect First Amendment rights on campus,
December 7, Dean of Students and Assistant Vice President but Russi refused to do so, claiming that Oakland never
of Student Affairs Glenn McIntosh and Vice President for branded Corlett a criminal despite finding him guilty of
Student Affairs & Enrollment Management Mary Beth “unlawful individual activities” for writing the essay.

    (continued from p. 2) requires counsel, I refer it to FIRE’s         Tired of TCC’s stubborn refusals to abide by the First
    Legal Network, a nationwide group of attorneys dedicated             Amendment, FIRE and the American Civil Liberties Union
    to defending rights on campus. For example, after former             of Texas worked in conjunction with local attorneys to file
    Valdosta State University (VSU) student Hayden Barnes was            a constitutional challenge to TCC’s speech codes on behalf
    expelled for engaging in peaceful protest against the planned        of Smith and Schwertz. Not only did the federal district
    construction of parking garages on campus, neither the               court issue a restraining order preventing TCC from limiting
    university nor the Board of Regents would budge until FIRE           student speech to its tiny “free speech zone,” prompting
    secured for Barnes the services of noted First Amendment             the school to voluntarily dismantle the zone, it also struck
    attorney Robert Corn-Revere. Suddenly, the Board of                  down another TCC policy preventing students from holding
    Regents was willing to reverse Barnes’ expulsion. (What a            campus events in association with off-campus groups. In
    surprise!) But this was too little, too late, and Barnes brought     addition to the embarrassment of fighting a losing battle
    a federal civil rights suit against the Board of Regents and         against the Bill of Rights, TCC was ordered by the court
    former VSU president Ronald Zaccari.                                 to pay over $240,000 in attorneys’ fees to the students’
                                                                         lawyers. That’s a lot of taxpayer money to waste in defense
    The lawsuit has generated powerful precedent for FIRE:               of censorship.
    In February, the United States Court of Appeals for
    the Eleventh Circuit denied Zaccari’s appeal, finding that But while FIRE is always prepared to issue embarrassing
    because he violated Barnes’ clearly established constitutional press releases or coordinate a lawsuit, we’ve found that
    due process rights by expelling him                                                   working proactively to prevent
    without a hearing, Zaccari may be              Litigation can also be rights abuses before they occur is
    found personally liable for damages. This       a powerful incentive                  important, too. To be effective, FIRE
    important courtroom victory realized a
    central aim of FIRE’s efforts: piercing
                                                   because losing federal must employ not only the proverbial
                                                                                          “sticks,” but the “carrots,” as well.
    the defense of “qualified immunity” civil rights lawsuits hurts That’s why we’re very pleased to work
    for an administrator who had clearly             colleges financially.                directly with university administrators
    violated a student’s constitutional                                                   who want to reform their institutions’
    rights. (In the last several years, FIRE has taken several steps speech codes before a problem arises, and to issue press
    towards eliminating the possibility of qualified immunity releases praising those schools that eliminate their speech
    for university administrators, including publishing legal codes and earn FIRE’s highest “green light” rating. Recently,
    scholarship on the issue and sending two national mailings we had the pleasure of doing just that when the University
    via certified mail to presidents of universities that maintain of Mississippi became our 15th green light institution by
    unconstitutional speech codes.) Legal victories like this make revising four policies that had restricted First Amendment
    FIRE’s work easier elsewhere, as would-be censors at other rights on campus. In our national press release, we noted
    colleges realize that violating student rights may have severe with pride that Ole Miss administrators had worked directly
    consequences for them individually.                              with FIRE attorneys to identify the problems and enact fixes.

    Litigation can also be a powerful incentive because losing           FIRE works hard for your support, and we think our
    federal civil rights lawsuits hurts colleges financially. Just ask   results speak for themselves. In order to change the campus
    Tarrant County College (TCC), a recent target of FIRE’s              culture and make sure that free speech and civil liberties are
    Speech Code Litigation Project. TCC repeatedly refused to            cherished, not repressed, at our nation’s colleges, we will
    allow students Clayton Smith and John Schwertz, members              continue to make sure that institutions violating rights pay
    of Students for Concealed Carry on Campus, to participate            a heavy price for doing so, while institutions that respect
    in an “empty holster” protest on TCC grounds.                        fundamental freedoms receive our respect and praise.

6           Spring 2012
                      From the
   FIRE Celebrates Free
     Speech Week on
This spring, FIRE teamed up with Students For
Liberty to encourage students across the country
to promote free expression on campus during Free
Speech Week, held April 1-8. To mark the occasion,
72 student groups distributed FIRE materials and
pocket-sized constitutions on campus. More than
20 groups organized other expressive events. Many
decided to build Free Speech Walls to invite student
discourse at schools including American University,
Harvard University, Boston University, and the                                 Adam Kissel speaks at Texas State
University of Texas San Antonio.

The CFN also worked with students to arrange FIRE speaking events at seven schools across the country. More
than 250 students, faculty, and administrators attended these events to hear about FIRE’s work promoting student
rights. For students who could not attend one of these talks in person, we also hosted FIRE’s first-ever webinar
on Tuesday, April 3. This interactive online discussion featured Will Creeley explaining the case law supporting
speech rights on campus.

We at FIRE had a great time celebrating Free Speech Week, and we were thrilled to help so many students raise
awareness of free speech on campus! However, student rights on campus need our help year-round. To learn more
about the CFN’s many resources for students, check out

               Register today for the 2012 CFN Conference
                            July 27-29, 2012
 Each summer, the CFN Conference
 brings together students from across
 the country to meet fellow advocates
 for free speech on campus and learn
 how they can promote free speech
 at their schools. To learn more, visit
                                                                  Isaac Rosenbloom (left) and Hayden Barnes (right), subjects of FIRE
                                                                  cases, were panelists at the 2011 CFN Conference.
         Eleventh Circuit Affirms Ruling against Former
                   Valdosta State President

    I    n a victory for student rights, the United States
         Court of Appeals for the Eleventh Circuit issued a
         unanimous decision in February in Barnes v. Zaccari,
    holding that former Valdosta State University (VSU)
    President Ronald M. Zaccari may be found personally
                                                                Zaccari could lose his “qualified immunity” from suit
                                                                for ignoring that right. Zaccari has appealed the ruling,
                                                                asking the Eleventh Circuit to review the case en banc.

                                                                Barnes’ ordeal began in the spring of 2007, when he
    liable for violating the due process rights of former VSU   peacefully protested Zaccari’s plan to spend $30 million
    student T. Hayden Barnes. Barnes first came to FIRE for     of student fee money to construct two parking garages on
    help in October 2007.                                       campus. By posting flyers and sending emails to Zaccari,
                                                                student and faculty governing bodies, and the Board of
    “This landmark ruling from the Eleventh Circuit leaves      Regents of the University System of Georgia, Barnes
    no doubt that university administrators who choose to       expressed his concerns and proposed what he saw as
    ignore the due process rights of their students do so at    environmentally friendly alternatives. Barnes also penned
    their peril,” FIRE President Greg Lukianoff said. “For      a letter to the editor of the VSU student newspaper about
    too long, college administrators have blatantly ignored     the proposed parking garage plans and wrote to Zaccari
    their students’ constitutional rights when they deemed it   to ask for an exemption from the mandatory student fee
    convenient. With this decision, it appears that courts are  designated for funding the construction.
    finally ready to make them personally pay for that abuse
    of power.”                                                  In response, Zaccari personally ordered that Barnes
                                                                be “administratively withdrawn” from VSU, ignoring
    Joined by 14 other organizations concerned about student the concerns raised by members of his administration.
    rights on public campuses, FIRE authored and filed an Zaccari claimed that Barnes presented a “clear and
    amici curiae brief with the Eleventh Circuit in April 2011 present danger” to both Zaccari and the VSU campus
    urging this result. FIRE’s brief argued that public college on the basis of a cut-and-paste collage Barnes had posted
    administrators who violate the constitutional rights of on his Facebook page that included pictures of Zaccari,
    students must be held liable for doing so. In yesterday’s a parking deck, and the caption “S.A.V.E.—Zaccari
    opinion, the Eleventh Circuit found that Barnes “had Memorial Parking Garage.” Barnes was given no notice
    a clearly established constitutional right to notice and or opportunity to defend himself, and came to FIRE for
    a hearing before being removed from VSU” and that help. In January 2008, Barnes filed suit in cooperation

8           Spring 2012
with eminent First Amendment attorney and FIRE Legal Legal and Public Advocacy. “It’s been nearly five years
Network member Robert Corn-Revere of Davis Wright since Hayden was unconstitutionally kicked out of
Tremaine in Washington, D.C.                         Valdosta State, but justice is on its way.”

The Eleventh Circuit’s decision affirms a federal district        FIRE has aided Barnes since learning of his case in
court’s September 2010 ruling that denied qualified               October 2007. FIRE wrote repeatedly to University
immunity to Zaccari at this stage in the proceedings.             System of Georgia officials, urging them to undo VSU’s
The U.S. District Court for the Northern District of              unlawful actions and uphold the Constitution within
Georgia found that because Zaccari expelled Barnes                the university system. Under pressure from FIRE and
without notice or a hearing, Zaccari violated Barnes’             the federal lawsuit against Zaccari and other VSU
constitutional right to due process. In its opinion, the          administrators, the Board of Regents finally reversed
district court ruled that because Zaccari ignored “clearly        Barnes’ expulsion early in 2008, and Zaccari retired
established” law in punishing Barnes, Zaccari could not           months earlier than planned. Under further pressure
avail himself of the defense of “qualified immunity,” and         from FIRE, former VSU President Patrick J. Schloss
could be found personally liable for damages.                     dismantled VSU’s unconstitutional free speech zone in
                                                                  September 2008.
Zaccari and the Board of Regents appealed the district
court’s ruling to the Eleventh Circuit in October                 FIRE’s amici curiae brief to the Eleventh Circuit was
2010, and oral arguments in the case were heard                   joined by the American Booksellers Foundation for
in Montgomery, Alabama, in November 2011. Corn-                   Free Expression, the American Civil Liberties Union of
Revere argued Barnes’ case. While February’s ruling               Georgia, the American Council of Trustees and Alumni,
upheld the district court’s denial of qualified immunity          the Cato Institute, the Electronic Frontier Foundation,
to Zaccari, the Eleventh Circuit reversed a breach of             Feminists for Free Expression, the Individual Rights
contract finding against the Board of Regents, holding            Foundation, the Libertarian Law Council, the National
that the State of Georgia had not consented to waive              Association of Scholars, the National Coalition Against
its Eleventh Amendment immunity from suit in federal              Censorship, the National Youth Rights Association,
court for breach of contract claims.                              Reason Foundation, the Southeastern Legal Foundation,
                                                                  and Students For Liberty. Atlanta-based attorney Cory
“The Eleventh Circuit’s decision is a clear win for               G. Begner of Begner & Begner, P.C. represented FIRE
student rights,” said Will Creeley, FIRE’s Director of            and all signatory organizations in the brief’s filing.

 Student Group Files Suit Challenging University of
          Cincinnati’s ‘Free Speech Zone’
O         n February 22, a student
          group filed suit against the
          University of Cincinnati in
federal district court, alleging that the
university’s tiny “free speech zone”
                                            “right to work” ballot initiative, but the
                                            request was denied. Morbitzer was told
                                            that if any YAL members were seen
                                            “walk[ing] around campus” gathering
                                            signatures, campus security would be
                                                                                      University policy further requires that
                                                                                      all expressive activity in the free speech
                                                                                      zone be registered with the university
                                                                                      a full ten working days in advance,
                                                                                      threatening that “[a]nyone violating this
violates the First Amendment. The           alerted.                                  policy may be charged with trespassing.”
University of Cincinnati chapter of                                                   The suit challenges the constitutionality
Young Americans for Liberty (YAL)           The University of Cincinnati (UC) of both requirements and was filed by
and its president, student Christopher      requires all “demonstrations, pickets, Ohio’s 1851 Center for Constitutional
Morbitzer, sought permission to gather      and rallies” to be held in a “Free Speech Law in cooperation with FIRE in the
signatures and talk to students across      Area” that comprises just 0.1% of United States District Court for the
campus in support of a statewide            the university’s 137-acre West Campus. Southern District of Ohio, Western

     Division. Ohio attorney Curt C. Hartman joined the 1851            walk around,” and stated that “if we are informed that you
     Center’s Ryan Walters as co-counsel.                               are, Public Safety will be contacted.”

     “The University of Cincinnati is a public, taxpayer-supported      After filing suit, Morbitzer and YAL came to a temporary
     institution that brazenly refuses to respect the First             agreement with UC, providing that UC would stop
     Amendment rights of its students,” FIRE President Greg             quarantining the group’s advocacy to the university’s free
     Lukianoff said. “Herding students who wish to engage in core       speech zone while the legal proceedings continued. The
     expressive activity into a tiny ‘free speech zone’ may make life   parties are preparing for a May 30 hearing.
     easier for campus bureaucrats, but it betrays the idea of the
     university as a true marketplace of ideas. FIRE has warned         UC has been on notice that its policy is unconstitutional for
     UC in the past, and now the university must answer for its         more than four years. FIRE named UC’s policy its “Speech
     disregard for free speech in federal court.”                       Code of the Month” in December 2007, calling it “truly
                                                                        shameful” that a public university “threatens students with
     Morbitzer and YAL asked the court to ensure that they              criminal prosecution merely for exercising their constitutionally
     be allowed to advocate throughout campus for the Ohio              protected rights outside of the paltry area it has designated for
     Workplace Freedom Amendment, a recently announced                  free speech.” FIRE also wrote to UC in December 2008,
     ballot initiative. To qualify for inclusion on the ballot in       explaining that UC’s free speech zone represented a serious
     November, supporters of the amendment must gather at               threat to liberty on campus.
     least 385,000 valid signatures by July 9, 2012. On February
     9, Morbitzer and YAL requested permission to immediately           FIRE’s efforts have defeated similar free speech zones on
     begin collecting signatures and discussing the merits of the       campuses across the nation, including the University of
     amendment with their fellow students across campus, citing         North Carolina at Greensboro, West Virginia University, the
     the need to get started right away.                                University of Nevada at Reno, Citrus College in California,
                                                                        Valdosta State University in Georgia, and Texas Tech
     UC denied that request, instead assigning the group to the         University.
     “Free Speech Area” and imposing a waiting period. UC even
     told Morbizter that he and his group were “not permitted to        “UC’s illiberal decision to restrict this kind of political speech
                                                                                                   to one tenth of one percent of its
                                                                                                   campus is shocking enough, but
                                                                                                   making students register to use that
                                                                                                   space ten working days in advance
                                                                                                   is even worse,” said FIRE Director
                                                                                                   of Legal and Public Advocacy
                                                                                                   Will Creeley. “UC cannot deny its
                                                                                                   students their First Amendment
                                                                                                   rights. FIRE is confident that UC’s
                                                                                                   free speech zone will be the latest in
                                                                                                   a long line to fall in federal court.”

                                                                                                  UC’s West Campus, with the
                                                                                                  ‘Free Speech Zone’ marked in
                                                                                                  green. The zone is less than .1%
                                                                                                  of the campus.

10             Spring 2012
                                                           Fanning the Flames:
                                                         Become an Eternal Flame
                                               Are you concerned about the state of free speech on our nation’s campuses? Are
                                               those dearest to you currently enrolled in college or planning to be in the future?
     About This                                By investing in FIRE’s work, you can leave a legacy of liberty that will have an
     Publication                               impact far beyond your own lifetime and ensure that your children’s and grandchildren’s
                                               education isn’t left to chance.
The FIRE Quarterly is published four
times per year by the Foundation for           FIRE offers our supporters many planned giving options that not only benefit FIRE
Individual Rights in Education.                and the thousands of students and faculty that we serve—they can also benefit you.
The mission of FIRE is to defend and           Through planned giving, FIRE donors can receive personal benefits that include:
sustain individual rights at America’s
colleges and universities. These rights                 •   Seeing significant tax savings
include freedom of speech, legal equality,              •   Receiving income throughout their lifetime
due process, religious liberty, and sanctity            •   Honoring a loved one through a gift
of conscience—the essential qualities of                •   Enjoying the feeling of promoting liberty on campus
individual liberty and dignity. FIRE’s core                 for generations to come
mission is to protect the unprotected and
to educate the public and communities of       Since we’ve launched our program, many Quarterly readers have shown their dedica-
concerned Americans about the threats          tion to our vital mission through a variety of planned gifts. Honored that they entrust
to these rights on our campuses and
                                               us with their legacy, we celebrate these individuals as members of FIRE’s Eternal
about the means to preserve them.
                                               Flame Society. I would love to speak with you to discover the perfect gift that meets
FIRE is a charitable and educational           the needs of you and your family and fulfills your philanthropic vision, so that you
tax-exempt foundation within the               may be the next inductee into the Eternal Flame Society.
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Internal Revenue Code. Contributions to        You can reach me at 215-717-3473 or by email at I’m looking
FIRE are deductible to the fullest extent      forward to hearing from you.
provided by tax laws.

                                                                                                                  Alisha C. Glennon
                                                                                                           Director of Development
                                               P.S. If you decide to include FIRE in your estate plans or have already done so, please
                                               let us know so we can honor you in the Eternal Flame Society!

                                               The easiest way to include FIRE in your estate plans is by leaving
                                               us a bequest. Typical bequest language is as follows:
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Philadelphia, PA 19106                                  “I, [name], of [city, state, zip code] give, devise and bequeath to the Foun-
215.717.3473 tel                                        dation for Individual Rights in Education whose current legal address is
215.717.3440 fax                                        601 Walnut St., Suite 510, Philadelphia, PA 19118 the sum of $______ [or                                         percentage of the estate or description of property or “rest, residue and
                                                        remainder of my estate”] for its general purposes (or for the particular
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                  The Last Word

                             Robert Shibley on ‘Fox & Friends’

                  F      IRE’s Robert Shibley appeared on the
                         popular show Fox & Friends this April.
                         Robert discussed FIRE’s recently
                  published feature “12 Worst Colleges for
                  Free Speech” in The Huffington Post, and he
                  briefly explained what some of the schools
                  did to get themselves on this year’s list. The
                  schools he discussed included the University
                  of Cincinnati, Harvard University, and
                  Syracuse University.
                  The show aired on the morning of Sunday,
                  April 1, and it is now available online at the
                  Fox & Friends website or through our blog
                  The Torch!                                       Robert (right) with Clayton Morris on Fox & Friends

   12                 Spring 2012

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