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University of California: We Refuse to Abide by Free Speech Law

Posted by iusbvision on June 23, 2008

UPDATED – See Below:

In a recent blog post The Vision informed its readers about the latest trend in abusing free speech on campus – firing or punishing the student club advisor or student newspaper advisor for the speech of students or for the act of daring to defend the free speech rights of students.

The State of California saw so many problems with this type of childish and Stalinist behavior by university administrators that it passed a law protecting such advisors who defend student’s free speech from retaliation.

Inside Higher Education Magazine published an article stating that University of California has no intention of abiding by the law (hat tip FIRE):

Above the Law?

Student newspaper advisers are something of an endangered species these days. They often get caught in the middle when administrators and student journalists clash over content, and in more than a few cases on college campuses in recent years, advisers – sometimes faculty members with tenure or tenurelike protections, but often vulnerable staff members – have found themselves losing their jobs. (High school newspaper advisers are even more vulnerable.)

“All you have to do is look around the country to see how many conflicts there are,” said Mark Goodman, the Knight Chair of Scholastic Journalism at Kent State University and former executive director of the Student Press Law Center. “This has really gained steam.”

It was with several recent such controversies in mind, and numerous instances of censorship at high schools in California, that the state’s Legislature overwhelmingly approved legislation this month that would prohibit a college or school district from firing, suspending or otherwise retaliating against an employee for acting to protect a student’s free speech. Last week, with the measure, SB 1370, sailing for passage and a trip to the governor’s office for Arnold Schwarzenegger’s hoped-for signature, the University of California quietly revealed its opposition to the bill.

In a letter to State Sen. Leland Yee, the legislation’s sponsor,a lobbyist for the university system “respectfully” warned Yee that the university did not expect to abide by the requirement if it was enacted. “The University of California must maintain its ability to correct situations in which a member of its teaching corps or a University employee has failed to comply with academic teaching standards, violated UC policies, broken rules or laws, or misused University resources.” wrote Happy Chastain, senior legislative director for state government relations in the UC president’s office. “Under the provisions of SB 1370, UC is concerned that its ability to act in such circumstances would be restricted and expose the University to frivolous and unwarranted litigation.”

The last-minute opposition from UC officials infuriated Yee and other supporters of the bill. Not only did they challenge the university’s logic for fighting the measure, disputing the suggestion that it would restrict its institutions’ ability to punish faculty members who teach inappropriate material in the classroom; more broadly, they also expressed surprise that the university could assert the right notto abide by the law. “We think their interpretation is wrong,” said Adam Keigwin, a spokesman for Senator Yee.

SB 1370 is only the latest piece of legislation aimed at ensuring the speech rights of student journalists. At the core of the effort is 1992’s California Education Code Section 66301, broadly protected the right of college students not to be punished solely “on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution” or California’s own Constitution.

The reason Yee followed up with the pending legislation, SB 1370, said Keigwin, his aide, is because campus media advisers are often thrust into the position of defending (or not defending) the student journalists whose work they oversee. If campus administrators can readily dismiss a faculty or staff member who stands up for student journalists, and replace him or her with someone who won’t, Yee asserts, the 2006 legislation can be seriously undermined.

“Since administrators are unable [under AB2851] to exercise prior restraint with regard to a student publication, they lean on advisers to do what they legally cannot,” said Jim Ewert, legal counsel for the California Newspaper Publishers Association, which supports the Yee measure. “When advisers refuse, they are punished because administrators know they will face no legal consequences. SB 1370 is necessary to close this gaping loophole in the law.”

U of C came up with a red herring of an argument as to why they believe that they should be able to violate the law:

“The letter cites as a hypothetical example a math instructor who allowed a student to promote opinions unrelated to the subject during class time, suggesting that under the law, the university would be prohibited from punishing the teacher for tolerating the disruptive student speech,” Goodman, the Kent State professor, wrote in a post on the blog of the Center for Scholastic Journalism. “Of course, the letter never explains why the University believes that off-topic student speech in the classroom would be protected by the law in the first place, a requirement for the university employee protections of the bill to come into play.”

Professor Goodman is quite correct. Why? Because if a student filibusters a math class by repeatedly asking questions about psychology for example, such an action would fall under what is known in free speech saw as a “hecklers veto”. A hecklers veto is speech that is designed to interfere with another’s right to hear the speech of someone else; in this case the students right to hear a math professor teach math in a math class. Anyone with basic understanding of communications law knows this. No law would protect a heckler under such circumstances.

U of C has a history of violating the freedom of speech and conscience of its students, such as when it censored an “affirmative action bake sale” held by students who oppose race based preferences and other forms of race based discrimination.

U of C is acting disgracefully, but like so many colleges across the country they say that they care about free speech and conscience all the while engaging in retaliation, coercion and intimidation to crush some who would speak against the campus orthodoxy. It is a problem in the IU system as well as many others as The Vision explored here

and here

Here is just one of example of university retaliation against a student newspaper advisor here from the Student Press Law Center:

Three editors at the Ocean County College student newspaper, the Viking News, filed a lawsuit in May against college President Jon Larson and several other administrators after the school removed longtime newspaper adviser Karen Bosley. The lawsuit alleges that Bosley’s removal was the result of retaliation for several stories the newspaper wrote critical of the school’s administration. The preliminary injunction is a decision that will allow Bosley to continue to advise the Viking News while the lawsuit is underway. Bosley has filed a similar separate lawsuit.

In his opinion, Judge Stanley R. Chesler wrote that the school’s decision to remove Bosley had violated the students’ First Amendment rights.

Chuck Norton

UPDATE – One might have thought that after getting their legal heads handed back to them on a platter by FIRE and Alliance Defense Fund in a court case they were forced to settle, California’s state funded university system would have learned, but appearently soviet standards of justice and freedom of speech have deep roots:

Student Free Speech is Finally Free in California
March 24, 2008

The Alliance Defense Fund (ADF) Center for Academic Freedom has reached a settlement with California State University (CSU) system officials to eliminate problematic restrictions on student speech at all 23 of the system’s schools.

“Christian and conservative students shouldn’t be penalized for expressing their beliefs,” said David Hacker, ADF litigation staff counsel. “The university is supposed to be the ‘marketplace of ideas,’ but these ‘speech codes,’ with few exceptions, were selectively applied. This settlement benefits everyone who cherishes their First Amendment rights.”

A federal judge suspended or limited aspects of the CSU speech policy last year, saying it contains serious constitutional problems.

As part of the settlement, portions of the Cal State system “speech code,” the San Francisco State University Student Organization Handbook “speech code,” and the SFSU harassment policy will be modified to eliminate unconstitutional restrictions that have been misused by university officials.

ADF sued on behalf of the College Republicans, in conjunction with the Foundation for Individual Rights in Education.

One Response to “University of California: We Refuse to Abide by Free Speech Law”

  1. Alex said

    Great article!

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