Indiana University’s Jihad Against Free Speech – UPDATED

 

UPDATE – See Comments Section Below

Recently, IUPUI has come under fire for a violation of student’s rights regarding a book about the KKK. In a blatant intrusion upon the freedoms students and all citizens should enjoy, the administration punished a student for simply reading a book that made someone else feel uncomfortable. After hearing about this tragedy, I spoke with former Chief Justice Chuck Norton about  this event and others that have taken place on our own campus.

JB: Why was IUPUI’s action a violation of students’ rights?

CN: The details of the case are not in dispute. A student who was also a staff employee of the university is an avid reader. He was reading a history book about how the KKK decided to engage Notre Dame Students with violence in 1925 and the students at Notre Dame quite literally kicked the Klanners’ butts in what is likely the biggest street fight in the history of South Bend.

Apparently reading a true historical account of an important defeat of the Klan is “racial harassment” because a student/co-worker went to the affirmative action office and filed a complaint.

The affirmative action office, in a violation of the IU code of conduct, without looking at the legal definition of racial harassment, in a violation of IU judicial procedure, and in violation of federal case law, found him guilty of “racial harassment” without giving him any real chance to defend himself, or even knowing the name of his accuser. This very book, Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan sits in the IUSB Library.

This student contacted FIRE – The Foundation for Individual Rights and Education who moved swiftly to let IUPUI know what was going to come their way if the administration continued to behave in such an unlawful manner. The university backpedaled and is now in full “cover your backside” mode. I called the IUPUI Affirmative Action Office and they were not answering the phone and not returning messages or calls so apparently these people who are paid by the taxpayer believe that they are totally unaccountable to the public as well. The local media criticized IUPUI to their credit.

JB: In your time as Chief Justice, have you seen the university violate students’ rights here at IUSB? How did Judicial affairs handle those situations?

CN: There have been some cases where the university did the right thing, some cases where the university did the right thing after SGA members intervened and other cases where the university decided that it was going to break the law and dig in their heels.

JB: Can you provide any details about those cases?

CN: I was involved in defending students in several cases where they were falsely accused. In some cases Vice Chancellor Karen White intervened directly and did the right thing.

When the IUSB Vision was set up in a conspiracy between a professor who has a history of attempting to engage in censorship and a student with a mission to bring The Vision down Karen White got down to the bottom of it pretty fast and put a stop to it. White is no fool and is very capable of administering justice if she sets her mind to it.

There were other cases such as the proposed “bulletin board policy” that would have allowed the Director of Student Life to censor student speech that he found to be “potentially offensive” and last year’s SGA united and made it clear that not only would the students not stand for the policy, President Vigil and I advised the university that a federal lawsuit may have followed if the new policy was implemented. The university decided to do the right thing.

There were two cases where professors filed bogus charges of academic misconduct against students. I have little doubt that these students would have been railroaded and their academic careers destroyed if those students did not have access to someone like the SGA Chief Justice to help defend them.

The case that earned IUSB nationwide attention and shame has still not been fully resolved. A student was writing a series of articles about the Vagina Monologues. The student’s second article, which was a review of the content of the play, was an accurate description of the sexually explicit content of the play. IUSB graduates who were in the V-Club and performed the play went on the record to state that the content of the article was accurate. The student also interviewed members of the cast including V-Club advisor Prof. Smits. The student’s interview questions followed the themes and events which are highlighted in the play.

Members of the V-Club said in interviews that when they had received an advanced copy of the article that they objected to such an explicit description of the play’s content. The majority members of the V-Club including Prof. Smits decided to make a concerted effort to have the article suppressed. The evidence shows that Prof. Smits worked with Judicial Affairs Director Charlotte Pfeifer and others to manufacture bogus sexual misconduct, stalking and hazing charges against the student.  They solicited others to file bogus charges against the student. They also put pressure on The Preface Editor to not publish the article.

University rules, not to mention federal case law, do not permit the university to interfere with student publications in this manner. Yet the evidence shows that this is not the first time that the Office of Judicial Affairs has broken these rules.

Smits filed a complaint with Pfeifer’s office against the student. The complaint was ridiculous on its face. Smits pulled the “saucy” parts of the student’s questions out of the context of the play and its themes to make it look like the student was the dirty old man from 70’s hit comedy show Laugh-In. Her complaint tried to make it seem as if some guy just walked up to her and started asking probing sexual questions in an attempt to be lewd; in reality the questions all centered around the themes of the play, the content of the play and of literature in general.

Smits has taught literature and to say a great deal of published and revered literature is filled with sexual and lewd content is perhaps the understatement of the century, yet after performing in a play as sexually explicit as the Vagina Monologues is, her complaint would have you believe that she turned into a shrinking violet because someone asked questions about it.

The evidence shows that Smits and her accomplices claim the right to offend anyone they chose with the sexually explicit nature of the play, and yet claim the right to scream “I’m offended” and go after anyone who describes or questions their activities in detail.

SGA became involved in the case when a member of the faculty, who was well aware of what was happening and who will forever remain anonymous, asked the SGA Chief Justice to take action.

The evidence and witness statements show that not only did Pfeifer collude in bringing these bogus charges to bear; she did not give the exculpatory evidence that she was well aware of to the accused, and found him guilty of the charges.

President Vigil and I launched an investigation which yielded a great deal of exculpatory evidence. We advised Vice-Chancellor White and others about what the IU Code of Conduct and Federal law have to say about what had happened in this case. Our pleas fell on deaf ears.

We tried to handle the situation in house but the administration wouldn’t have it so the student filed an official appeal of Pfeifer’s decision and former President Vigil and I, with the support of President Blount, presented a defense brief outlining some of the evidence we had found in our investigation and a detailed explanation of the IU Code of Conduct and federal case law to the appeal commission judges which included two senior faculty members and a student.

The appeal hearing was very enlightening to put it mildly. The Office of Judicial Affairs presented a surprise witness in violation of IUSB’s own judicial procedures. We objected but the judges allowed the witness. Ironically under questioning their surprise witness substantiated the case for the defense.

The appeals hearing threw out the hazing and stalking charges but found the student guilty of sexual misconduct, when there was no conduct alleged, only constitutionally protected speech. The IUSB hearing judges and Pfeifer and White were presented with detailed explanations of Federal case law, the IU code and enough facts that left more than enough room for doubt and yet they made a choice to violate the rules and the law in finding this student guilty.

One of the judges even made statements indicating that for matters of that hearing, the law didn’t matter very much. At another meeting the same judge even told me in no uncertain terms, “good luck in finding a lawyer or group to take the case.” I appreciated that because the student ended up having plenty of luck.

At this point the student asked for high powered outside legal help and contacted the Foundation for Individual Rights in Education (FIRE), Students for Academic Freedom, and the ACLU, of which I am a member.

Students for Academic Freedom contacted the President of FIRE on the student’s behalf. FIRE, after conducting its own investigation, started advising and consulting with the ACLU. FIRE sent a gem of a legal “nasty gram” to Chancellor Reck. Reck referred the letter to IU legal and IU legal interpreted the IU Code and Federal case law correctly in its response saying, “the University erred in trying to address these issues through a disciplinary process. The Code of Student Rights, Responsibilities and Conduct is designed to address behavior (i.e., conduct) and not speech. The charges filed against you should have been dismissed at the outset on that distinction.”

One administration member told me, “judicial affairs has egg on its face and it was published nationwide” and made it clear that things could happen which I interpreted as some form of retaliation.

After FIRE got involved and published what was happening to this student on its web site more people and evidence came forward which is being saved if needed. If and when this case comes to further legal action my advice would be to tell the truth, the whole truth, and nothing but the truth because the administration is not aware of just how much new evidence we have.

The aftermath has had its ups and downs. On the upside FIRE and the ACLU are watching IUSB very closely to put it mildly. There are members of the administration who are appalled at what has been happening in judicial affairs and have been acting with conscience.

On the down side IUSB refuses to investigate itself on the abuses of the system committed by Pfeifer, Smits and others who abused this student. IUSB has refused to clear this student’s record of this nonsense. IUSB sent out letters to other members of the administration and some school deans stating that this student is guilty of sexual misconduct, to the best of my knowledge new letters have not been sent out clearing his name. Professors are stating that they have been “warned” about this student, most likely as a result of those letters.

The university retaliated against SGA President Blount. He was fired from his job in student services and he has children to feed. He was told that it was due to “budget cuts”, however an examination of those budgets by those who are in the know say otherwise. Others who are in a position to know have stated that Blount’s status as a student was threatened. They also say that the administration has threatened to remove funding from the SGA. I know that Blount was so frightened that he was pressured to lie about some of the facts about the investigation in an attempt to undermine it and assault the credibility of the student [accused], former President Vigil and myself. Blount is a good man at heart and came clean when confronted on this.  FIRE has made it clear that it stands ready to take action on Blount’s behalf should he so wish it.

I have been also made aware that some in the administration sought to take some action against me but decided otherwise because I have the means, resources and will to fight back and win. If they had retaliated I am confident that the depositions and discovery process would prove to be quite amusing.

JB:  In your opinion as Chief Justice, is the university looking to protect the rights of students on this campus?

CN: The simple truth is that most universities could care less about a freedom of speech and conscience. They all pay lip service to it, but a simple examination of FIRE’s web site in the complaints section shows that this problem is rampant across universities nationwide and what happened at IUPUI is merely one of the latest examples.

Across the nation there are more cases of students and professors being persecuted for constitutionally protected speech, falsely denied tenure, grades lowered for political reasons, anti-Semitic bias, and forced political indoctrination than I can count.  Most of the time they get away with these abuses because students don’t know how to defend themselves.

There are three film documentaries that bring light to this issue. “Indoctrinate U” is excellent. Magicians Penn & Teller did an episode on their Showtime program on this issue and famed actor, comedian, writer, and financial genius Ben Stein has made a documentary called “Expelled” which opens in theatres April 18.

As far as IUSB, Judicial Affairs is so structurally flawed that unless someone intervenes to make it fair, the student has almost no chance of a fair and impartial hearing. For example – let’s say that a professor makes an accusation against a student. It is Pfeifer’s job to be impartial, collect all the evidence both damning and exculpatory and lay it all out on the table for all to see and to make a judgment.  That judgment can be appealed to the vice-chancellor, to a hearing commission, sometimes the student affairs committee can get involved and it can be appealed to the chancellor.

Here is why that system is flawed. Pfeifer has told me to my face that a student’s word is never as good as a professors’. She has told others that as well. So if it’s “he said she said” then the student is guilty. There is no genuine benefit of the doubt.   Since the student has no resources to investigate and demand cooperation and Pfeifer and the professors do, the damning evidence is highlighted, the exculpatory is not and the student for all practical purposes is guilty until the student proves themselves innocent and is given almost no resources to do so.

So let’s say the student appeals to the hearing commission. Even in spite of solid evidence and law all of the assumptions went against the student in the case outlined above. Most of the benefit of the doubt went to Pfeifer and the professor.

Why is this? Academia has a culture that exacerbates this problem. Professors of course have a PhD. Most really believe that they and their peers are the smartest people they know. Most of them have enough similarity in their cultural and political views that for many they pat each other on the back, tell each other how brilliant they are, and after all it must be true because all of these brilliant PhD’s say so right? This environment leads to a culture where people stop challenging their own assumptions. They have made an assumption or a charge therefore it must be true.

This is precisely the kind of thinking I have run into time and time again in helping students fend off bogus charges. There are those who are more careful thinkers and will even challenge their own assumptions that sometimes get on these hearing commissions, but in the end they have to work with their peers and say hello to a vice-chancellor every morning; so all of the peer pressure goes against the professor chosen as judge. So who is inclined to go against the tide? “After all we have to work with these people,” I was told by one professor on a key committee who is sympathetic to students who have gone through this process. Students come and go, careers are almost forever.

If someone in the office of judicial affairs has an axe to grind against you or goes along with a misguided professor who does, the way judicial affairs is conducted becomes nothing short of Nixonian.

What every university needs in an ombudsman with real investigative power whose job is to help defend the accused almost no matter what, to balance this structural unfairness out. This ombudsman cannot be someone who goes to the same restaurants and cocktail parties as the rest of the faculty and administration. The peer pressure on the ombudsman has to be removed as much as possible.

JB: If a student feels that their rights have been violated, what course of action would you recommend? Are there any third party organizations that specialize in the protection of students’ rights?

CN: Contact me. I am willing to help any student with their defense. Get copies of not only the student code of conduct, but the actual judicial and appeals procedures as well and have a professor or a lawyer friend help you go through them so you understand them. They may try to use not so subtle intimidation tactics against you so give an appearance of confidence.  Another tactic is to escalate the charges if you make it clear that you won’t go quietly, so expect that.

Professors can be unreasonable for the reasons mentioned above. Talk to that professor’s supervisors. You might get lucky and that professor has a boss who is willing to risk conflict with a professor. It is rare but I have seen it happen.

Don’t incriminate yourself. Anything you say can and may be taken out of context and used against you. Find representation of some kind to go with you and make sure that representation is not someone who is going to be intimidated themselves. Sometimes talking to the SGA can help – but keep in mind that members of the SGA can sometimes be successfully intimidated as well. Some on the SGA are like politicians and won’t do anything unless there is a benefit for them.

Demand that the IUSB office of Judicial Affairs give you all of the exculpatory evidence. If you don’t get it, you know something is afoot.

Don’t be afraid to call the Foundation for Individual Rights in Education (www.thefire.org) and talk to someone. While they cannot take on all cases, at least you can get some great advice at a minimum.

JB: Thank you for your time and for your perseverance working to fight for the rights of students on this campus.

 

Jarrod Brigham