FIRE_FALL_12_quarterly_FINAL by thefire


									                                                               FALL 201 2





     the Director of Development

     T     hings at FIRE are busy! With the fall
           semester in full swing and the election
     season upon us, too many college administra-                                                   ALISHA GLENNON
     tors are busy doing what they do best: squelching
     expression on campus. For FIRE staff, that                      and resolution of campus rights violations,
     means more late nights at the office—and for                    and generate new avenues for public pressure
     FIRE donors, that means it’s time for you to                    and administrative reform;
     renew your support.                                          •	 FURTHER update our Guides to Student Rights
                                                                     on Campus, releasing an updated version of
     Your past donations provided us with the                        our Guide to Due Process and Fair Procedure
     resources to win 21 public victories benefitting                on Campus;
     more than 750,000 students just this year alone.             •	 CREATE, PUBLISH, AND DISTRIBUTE dozens of
     Today, I hope you will consider contributing                    short films aimed at exposing the state of
     again so that FIRE can ramp up our efforts in                   liberty on campus.
     2013. Your donation will allow FIRE to:
                                                             We understand that you need to choose wisely
      •	 DEFEND students and faculty members against         when deciding which organizations have earned
         abuses of their expressive rights and viola-        your financial support. You need to evaluate
         tions of their right to private conscience;         who is making a bigger impact in the world
      •	 BUILD coalitions in the legal and policy fields     and who is most worthy of your investment,
         by recruiting new attorneys for our Legal           whether it be $10 or $1,000. FIRE’s consistent
         Network, holding more Continuing Legal              and principled approach to advancing liberty
         Education courses, and gathering support            means more cases won, more students defended,
         for our efforts to combat regulatory and            more protection for professors’ academic free-
         administrative threats on and off campus;           dom, and more rights for everyone on campus.
      •	 BATTLE harmful speech codes through our             We are a safe bet. Not only does our reputation
         Spotlight database, Policy Reform Project,          speak for itself, but our plans for the future are
         and Speech Code Litigation Project;                 ambitious and achievable—if only we can earn
      •	 PARTNER with the Bill of Rights Institute to        your support once again.
         develop a high school curriculum that will
         educate students about coming into their full       I hope you will choose to invest in FIRE. Your
         First Amendment rights as American adults           gifts are 100% tax deductible. If you have
         and about the state of freedom of speech on         questions about the different ways you can help
         college campuses;                                   FIRE, please feel free to reach out to me at
      •	 RELEASE a smartphone application that will or 215-717-3473.
         provide a forum for the reporting, advertising,                                      Alisha Glennon

01                                                    FALL 2012
       in action


F    IRE is proud to announce the second
     edition of our Guide to Free Speech on Cam-
pus, published this July. More than 50 FIRE staff
                                                             campus, the Guide draws from historical,
                                                             legal, and practical sources to arm its readers
                                                             with the knowledge needed to promote the
members, supporters, and students gathered in                freedom, meaningful debate, and openness
Washington, D.C., to celebrate the book’s release.           upon which our society depends for its
                                                             continuing vitality.”
Published in 2005, the first edition of FIRE’s
Guide to Free Speech on Campus has been dis-           The second edition of the Guide was edited
tributed to more than 138,000 students, faculty        by FIRE President Greg Lukianoff and FIRE
members, alumni, administrators, and citizens          Director of Legal and Public Advocacy
across the country as a tool to fight censorship       Will Creeley.
on campus. The newly revised second edition
of the Guide has been fully updated for today’s
students, paying special attention to student
expression in the Facebook era and providing
readers with new examples from FIRE’s case
archives, important updates from state and
federal case law, and incisive analysis. FIRE
distributes free hard copies to students who
contact FIRE, while electronic copies in popular
e-reader formats are free to the public.

FIRE’s Guide has received praise from civil
liberties advocates across the country, including
Nadine Strossen, Professor of Law at New York
Law School, former President of the American
Civil Liberties Union (1991–2008), and member
of FIRE’s Board of Editors. Strossen says:

   “FIRE’s newly revised Guide to Free Speech on
   Campus is both enlightening and empowering.
   It should inspire students and faculty to
   exercise their free speech rights vigorously
   and to defend freedom of speech for every
   member of the campus community. With
   fresh examples relevant to today’s college               FIRE’S GUIDE TO FREE SPEECH ON CAMPUS

                                                FALL 2012                                                      02
            in action


     W       ith students back on campus and high
             school seniors beginning their college
     applications, FIRE was pleased to announce our
     2012 list of the nation’s best colleges and univer-
     sities for freedom of speech in The Huffington Post
     in September. FIRE commended the following
     institutions for protecting free speech on campus
     and maintaining policies that honor freedom of

             JAMES MADISON UNIVERSITY                                                    JAMES MADISON UNIVERSITY

                                                             In determining what schools would appear on
             UNIVERSITY OF MISSISSIPPI                       this year’s list, FIRE considered whether an
           MISSISSIPPI STATE UNIVERSITY                      institution’s policies restricted speech protected
       UNIVERSITY OF TENNESSEE–KNOXVILLE                     by the First Amendment and whether the school
                                                             had censored speech in recent years. Each of
                UNIVERSITY OF VIRGINIA                       the seven institutions chosen has earned a
            UNIVERSITY OF PENNSYLVANIA                       “green light” rating in FIRE’s Spotlight database
                                                             of university policies. FIRE awards a college or
     Three new institutions joined this year’s list.         university a green light rating if it does not
     James Madison University, the University of             maintain any policies that seriously imperil
     Mississippi, and Mississippi State University           speech on campus. Only 16 schools out of
     each earned the honor following successful              the nearly 400 FIRE rates have earned green
     revisions to policies that had restricted student       light ratings.
     expression. The College of William & Mary,
     the University of Tennessee–Knoxville, the              As a new academic year begins, students should
     University of Virginia, and the University of           be aware that these schools are the best bets
                           Pennsylvania are each en-         for their freedom of expression, and, thus, for
                           joying their second straight      their academic future. “It’s easy for students to
                           year as a “best school” for       get caught up in the frenzy of trying to get into
                           maintaining their strong          the best-ranked schools,” said FIRE President
                           commitments to freedom            Greg Lukianoff. “But if the college you attend
                           of expression, both in their      doesn’t respect free speech, your education
                           written policies and in their     will suffer regardless of how high the college
                           daily practice.                   is ranked.”

03                                                    FALL 2012

I  n a major victory for student rights, a
   federal district court delivered a final ruling
prohibiting the University of Cincinnati (UC)
                                                        The lawsuit was coordinated by Ohio’s 1851
                                                        Center for Constitutional Law in cooperation
                                                        with FIRE.
from reinstating its tiny “free speech zone” in
August. In the order, United States District Judge      UC had been on notice that its policy was uncon-
Timothy S. Black issued a permanent injunction          stitutional for more than four years. FIRE named
against UC’s unconstitutional restriction. Per          UC’s policy our “Speech Code of the Month” in
the ruling, UC may not restrict student speech          December 2007, calling it “truly shameful” that
in the outdoor areas of UC’s campus unless              a public university “threatens students with
the restriction is “narrowly tailored to serve a        criminal prosecution merely for exercising their
compelling University interest.”                        constitutionally protected rights outside of the
                                                        paltry area it has designated for free speech.”
As reported in the FIRE Quarterly’s Spring              FIRE also wrote to UC in December 2008,
issue, prior to the lawsuit, UC had required            explaining that UC’s free speech zone repre-
all “demonstrations, pickets, and rallies” to be        sented a serious threat to liberty on campus.
held in a “Free Speech Area” that comprised just        In March 2012, UC topped FIRE’s annual
0.1% of the university’s 137-acre West Campus.          list of the worst colleges for free speech in
University policy further required that all expres-     the country, published in The Huffington Post.
sive activity in the free speech zone be registered
with the university a full 10 working days in           After the court issued a preliminary injunction
advance, threatening that “[a]nyone violating           against UC on July 12, the university revised
this policy may be charged with trespassing.”           its speech code to comply. August’s ruling
                                                        will make this change permanent, securing
In February, the University of Cincinnati chapter       the First Amendment rights of all students on
of Young Americans for Liberty (YAL) and                UC’s campus.
its president, student Christopher Morbitzer,
sought permission to gather signatures and talk
to students across campus in support of a state-
wide “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 alerted. YAL and Morbitzer filed
suit on February 22, 2012, in the United States
District Court for the Southern District of
Ohio, Western Division, challenging UC’s policy.
                                                             UNIVERSITY OF CINCINNATI YOUNG AMERICANS FOR LIBERTY GROUP

                                                 FALL 2012                                                                04
            cover story


     F    IRE Quarterly readers are well aware of
          how rights violations on college campuses
     affect students. Whether it’s an environmentalist
                                                           pervade student handbooks and college websites
                                                           not only misinform students about what their
                                                           constitutional rights actually are—thereby
     student in Georgia expelled for a collage he          undermining the civic benefit of education—but
     posted on Facebook, a                                                   they also dangerously ignore
     student in Indiana found                                                or even distort the moral
     guilty of racial harassment for                                         and philosophical wisdom
     publicly reading a book, or                                             of basic rights like freedom
     student groups across the                                               of speech.
     country kicked off campus for
     wanting to organize around                                              By doing so, Greg argues,
     a shared set of beliefs, the                                            colleges and universities fail
     real-world cost of censor-                                              to serve their role as society’s
     ship is significant and some-                                           “sophistication machine” for
     times life changing.                                                    people to become more
                                                                             enlightened citizens of a
     But, in his new book,                                                   participatory democracy.
     Unlearning Liberty: Campus
     Censorship and the End of                                               Greg strives to answer
     American Debate—available                                               the   question    of   why,
     now—FIRE President Greg                                                 in a day and age when
     Lukianoff seeks to take the                                             more of us are college
     discussion a step further,                                              educated than ever before,
     arguing that censorship on                                              the quality of our national
     America’s college and uni- UNLEARNING LIBERTY BY GREG LUKIANOFF         dialogue seems to be at an
     versity campuses has broader, more insidious       all-time low. What he finds is that higher
     consequences that are not restricted to the        education—informed by a culture of censorship—
     boundaries of campus.                              fails to teach its students to become critical
                                                        thinkers by supercharging ideological divisions,
     Drawing on a decade of experience battling for     promoting “groupthink,” and encouraging an
     freedom of speech on campus, Greg contends         unscholarly certainty about complex issues.
     that the over-regulation and double standards
     applied to speech on college campuses teaches      To expose this scandal, Greg walks readers
     students all the wrong lessons about what it       through the life of a modern-day college student,
     means to live in a free and democratic society.    from orientation to the end of freshman year.
     He finds that the kind of speech codes that        Through this lens, he explores some of the most

05                                                  FALL 2012
                                        Greg contends that the over-regulation
                                      and double standards applied to speech on
                                          college campuses teaches students all
                                      the wrong lessons about what it means to
startling violations of free speech
and due process rights he has seen         live in a free and democratic society.
and fought against in his career. Some of the cases     trum for its ability to shed light on the high
will be familiar to longtime FIRE Quarterly             cost of campus censorship. Harvard University
readers; others will serve as a shocking reminder       professor Steven Pinker, author of The Blank
of just how pervasive these violations are.             Slate and The Better Angels of Our Nature,
                                                        writes that it is an “alternately entertaining
Through it all, Greg ties his campus narra-             and shocking book”; University of Wisconsin–
tive to what’s happening in society at large. As        Madison professor Donald Downs says it is
he explores public controversies involving              “destined to be a classic work on freedom in
Juan Williams, Rush Limbaugh, Bill Maher,               America”; and renowned journalist Nat Hentoff
Richard Dawkins, and Larry Summers, along               adds that it is “a must read book for anyone
with campus uproars in which Dave Barry and             concerned about the constitutional future of
Jon Stewart’s “The Daily Show” played a role,           our nation.”
Greg paints a stark picture of our ability as a
nation to rationally discuss important issues.          Unlearning Liberty is available for purchase
                                                        through Amazon and Barnes & Noble and in
Already, Unlearning Liberty has begun to receive        bookstores nationwide.
critical acclaim from across the political spec-

  FIRE announces its Speech Code of the Quarter: Illinois State University,
  FIRE’s Speech Code of the Month for September 2012. ISU’s Code of
  Student Conduct lists a set of “non-negotiable values,” including “civility”
  and “an appreciation of diversity,” and states that “when individual behavior
  conflicts with the values of the University, the individual must choose whether to adapt his or her
  behavior to meet the needs of the community or leave the University.” Constitutionally speaking,
  this policy is not a close call. A public university cannot exclude students whose otherwise lawful
  behavior does not accord with its chosen values.

                                                 FALL 2012                                               06
            rights at risk


     F    or months now, FIRE has fought for the First
          Amendment rights of Maurice Eisenstein,
     a Professor at Purdue University Calumet (PUC)
                                                               its investigation, which had already lasted more
                                                               than two months. Although Eisenstein was
                                                               eventually found not guilty of harassment or
     who was subjected to months of investigations             discrimination in any of nine complaints filed
     and numerous retaliatory charges for his exercise         against him, Eisenstein was found guilty of
     of free speech. Eisenstein has been forced to             “retaliation” on the basis of two isolated com-
     file a free speech lawsuit against the university in      ments to faculty who had also filed complaints.
     an effort to clear his name.
                                                               Eisenstein faced additional allegations of ha-
     Eisenstein has been fighting for his free speech          rassment and retaliation from another faculty
     rights since November 2011, when he posted                member after he described his case on his
     a photo on Facebook of “Christians killed by              personal website and posted public documents
     a radical Muslim group,” and criticized “‘mod-            that he received in response to a public records
     erate’ Muslims” who failed to condemn the                 request. These documents were the basis for
     attack. Numerous PUC faculty members and                  a complaint against Eisenstein filed in April
     students, some of whom had no previous                    2012, despite the fact that all the informa-
     interactions with Eisenstein, responded by filing         tion Eisenstein posted had come from publicly
     harassment and discrimination complaints for the          available documents.
     Facebook comments and unspecified comments
     made in the classroom. One complaint was                  Fortunately, PUC dismissed this complaint in
     filed by the PUC Muslim Student Association               June 2012, rightly determining its charges to
     “on behalf of all Muslim students” at PUC.                be “not substantiated.” PUC, however, rejected
                                                               FIRE’s requests and Eisenstein’s appeals to dis-
     FIRE wrote to PUC Chancellor Thomas L.                    miss the other two findings of retaliation against
     Keon in January 2012, explaining that Eisen-              him. In May 2012, Eisenstein filed a lawsuit
     stein’s speech was protected by the First                 against PUC, the two faculty complainants, and
     Amendment and urging PUC to put an end to                 others for violating his First Amendment rights.

                                                               Purdue University Calumet’s deplorable
                                                               treatment of Professor Eisenstein and its
                                                               atmosphere of intolerance toward dissenting
                                                               opinions have deeply chilling implications for free
                                                               speech. FIRE hopes PUC will recognize its er-
                                                               rors and stand up for Eisenstein’s rights before
                                                               becoming the latest university to lose in court
                                                               for ignoring the First Amendment.
                              PROFESSOR MAURICE EISENSTEIN

07                                                      FALL 2012

O    n June 8, 2012, over 160 rallies were held
     across the country to oppose new federal
mandates dealing with abortion and contracep-
tion. For the Traditional Values Club (TVC)
at Ohio’s Sinclair Community College (SCC),
however, that rally was stifled. Despite SCC’s le-
gal obligation as a public institution to uphold the
                                                         PROTESTORS AT SCC HOLD THEIR SIGNS
First Amendment on its campus, police ordered            BEFORE POLICE TELL THEM TO PUT THEM DOWN
participants and attendees to put their signs
supporting the event on the ground, out of view.         of students Ruth Deddens and Ethel Borel-
                                                         Donohue, along with invited speaker and
SCC is now the target of a First Amendment               Director of Youth Outreach for Priests for Life
lawsuit following the college’s brazen violation         Bryan Kemper.
of students’ free speech rights.
                                                         The suit alleges that SCC and its Board of
“Sinclair Community College’s censorship is so           Trustees, college president Steven Lee Johnson,
plainly unconstitutional that it’s difficult to un-      and SCC’s police department maintain and
derstand how campus police and administrators            enforce policies that restrict expressive activity
justify it even to themselves,” said FIRE Senior         at SCC, give unfettered discretion to admin-
Vice President Robert Shibley. “Now they’re              istrators and the police to restrict student
going to have to try to justify it in court.”            speech, and threaten students with disciplinary
                                                         or criminal charges for exercising their First
FIRE wrote to SCC President Steven Lee                   Amendment rights.
Johnson on June 15, asking SCC to disavow
the censorship of TVC’s event by the campus              Such censorship has apparently been taking
police and to promise never to enforce such a            place at SCC for more than 20 years. Accord-
ban against signs in the future. SCC asked for           ing to The Clarion, SCC’s student newspaper,
more time to make a decision and then simply             campus police have enforced a policy against
reiterated its policy.                                   signs at SCC since 1990, justifying this censor-
                                                         ship through an extremely broad reading of
After discussions with FIRE, the Thomas More             the college’s Campus Access Policy.
Society, working with Ohio attorneys Curt C.
Hartman, Christopher P. Finney, and Bradley              “Twenty-two years of censorship is absolutely
M. Gibson, brought a lawsuit against SCC                 inexcusable, and Sinclair’s persistent delay has
in the U.S. District Court for the Southern              now prevented yet another protest,” said Shibley.
District of Ohio. The suit was filed on behalf           “The time for delay is over.”

                                                  FALL 2012                                                   08
            rights at risk


     T    he University of Delaware (UD) has violated
          its obligation to protect First Amendment
     rights by adopting a prohibition on “bullying” that
                                                              tutional policy. “While the university is free to
                                                              discourage offensive speech and expression that
                                                              does not rise to the level of actual harassment or
     subjects students to punishment for protected            threats,” we wrote, “it may not outright prohibit
     speech.                                                  constitutionally protected speech simply because
                                                              it hurts the feelings of college students.” UD
     The policy, which FIRE named its “Speech                 did not respond to our letter.
     Code of the Month” in August, defines “bullying”
     as “[a]ny deliberately hurtful behavior, usually         UD’s new policy is particularly worrisome in
     repeated over time, with the desired out-                light of the university’s history of shameful disre-
     come of frightening, intimidating, excluding             gard for students’ rights. In 2007, FIRE exposed
     or degrading a person.” Examples of bullying             a shocking ideological reeducation program in
     include “teasing,” “ridiculing,” and the “spreading      UD’s residence halls. Students were required to
     of rumors.” The broad wording of this policy             adopt specific, university-approved views on is-
     makes it highly vulnerable to abuse and has the          sues ranging from politics to race, sexuality, soci-
     potential to silence core protected speech such          ology, moral philosophy, and environmentalism.
     as parody, satire, and political speech.                 Students in the residence halls were required to
                                                              attend sessions with their resident advisors where
     “No one likes bullying, but most conduct that            they were asked questions such as “When did you
     could be called bullying on the college level is         discover your sexual identity?” Internal docu-
     already illegal,” said Samantha Harris, FIRE’s           ments referred to the lesson plans as “treatments”
     Director of Speech Code Research. “This policy           for students.
     goes much too far by prohibiting constitutionally
     protected speech.”                                       UD scrapped the program following intense
                                                              public pressure, but the fact that UD ever
     FIRE wrote to UD President Patrick Harker                felt that such indoctrination was appropriate
     on June 29, asking him to abolish the unconsti-          leaves FIRE with significant concerns over the
                                                              university’s commitment to student rights.

                                                              “UD’s own history of error demonstrates
                                                              precisely why students’ rights must be vigorously
                                                              protected,” Harris said. “A broad and vague
                                                              policy like the one UD has now adopted is a
                                                              violation of students’ First Amendment rights
                                                              and an invitation to abuse by the public officials
                                                              who run UD.”

                                   UNIVERSITY OF DELAWARE

09                                                     FALL 2012
        on campus


T     his past July, FIRE welcomed over 50              r ight: BOB CORN-REVERE
                                                        middle: STUDENTS DISCUSS
      students from across the country to our fifth     HARD ISSUES IN A BREAK
annual Campus Freedom Network Conference                OUT SESSION
                                                        below: FIRE INTERN EMILY
at Bryn Mawr College. The conference featured           HARRISON
speeches by several distinguished friends of
FIRE, including Professor Don Downs from
the University of Wisconsin–Madison, Christina
Hoff Sommers of the American Enterprise
Institute, and Bob Corn-Revere of Davis Wright
Tremaine LLP, who is representing student
Hayden Barnes in his First Amendment suit
against Valdosta State University. Students also
learned from FIRE staff, participated in group
discussions, and heard from a panel of students
involved in free speech cases at their own schools.
Visit for more highlights
from the weekend!

         WEBI N AR SER I ES

This fall, FIRE President Greg Lukianoff
kicked off our webinar series by discussing
his brand-new book, Unlearning Liberty,
on October 17. Be sure to check
webinar for details on how to join us!

          Samantha Harris
 Speech Codes, November 14, 3 p.m. EST
            Robert Shibley
  Due Process, December 13, 3 p.m. EST

                                                 FALL 2012                         10
how to reach us...

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215.717.3473 tel
215.717.3440 fax

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                        ABOUT THIS PUBLICATION
                    The FIRE Quarterly is published four times per year by the
                    Foundation for Individual Rights in Education.

                    The mission of FIRE is to defend and sustain individual
                    rights at America’s colleges and universities. These rights
                    include freedom of speech, legal equality, due process,
                    religious liberty, and sanctity of conscience—the essential
                    qualities of individual liberty and dignity. FIRE’s core
                    mission is to protect the unprotected and to educate the
                    public and communities of concerned Americans about
                    the threats to these rights on our campuses and about the
                    means to preserve them.

                    FIRE is a charitable and educational tax-exempt foundation
                    within the meaning of Section 501(c)(3) of the Internal
                    Revenue Code. Contributions to FIRE are deductible to
                    the fullest extent provided by tax laws.

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