Several years ago, the La Voz de Aztlan, a radical left-wing supplement to Fresno State University’s student newspaper, published a poem steeped in anti-American sentiment. It referred to America as “the land robbed by the white savage,” the “land of the biggest genocide,” the “place of greed and slavery,” the “rapist of the earth,” and the “land of the brute, the bully, the land of glorified killers, the eater of souls[.]”
The poem’s publication sparked a controversy that has led to yet another defeat for free speech in higher education. A conservative student who questioned the propriety of the poem’s selection was bullied by university officials, thrust into a bureaucratic nightmare, and ultimately given no reprieve in court. The Ninth Circuit’s recent decision on the controversy has dangerous ramifications for student journalists, and should be a wake-up call for those concerned about the erosion of First Amendment rights on campus.
The saga began in 2011. Neil O’Brien, a politically active Fresno State student who had founded the university’s Young Americans for Liberty chapter and organized local Tea Party events, stumbled across the poem in La Voz and was astounded by its message. He decided to address face-to-face two faculty members in the Chicano and Latin American Studies (CLS) Department, which produces the supplement. He wanted to know whether the professors approved of the poem’s content and publication.
Openly recording his interactions on video, O’Brien stood peacefully at the office doors of Dr. Victor Torres, faculty advisor to La Voz, and Dr. Maria Lopes to ask for their comments. Both professors refused to respond, which is certainly their prerogative, but they then went a step further and reported O’Brien to campus police.
O’Brien provided his video recording to campus police who examined it and determined that he had not demonstrated “threatening or intimidating” behavior that would violate campus policy. Apparently unsatisfied with that finding, Torres and Lopes then petitioned the campus police to change their ruling to one less favorable for O’Brien.
Despite campus police absolving him of any wrongdoing, O’Brien soon received a letter from Dr. Carolyn Coon, Assistant Dean of Student Affairs, summoning him to a “judicial conference” on the basis that his actions “[threatened] or [endangered] the health or safety” of Drs. Torres and Lopes. O’Brien had to appear before Dean Coon—without legal representation—or potentially face a disciplinary hold on his record.
Two months after that one-sided “conference,” O’Brien received word from Dean Coon that charges had been filed against him for violating the Student Conduct Code, which prohibits behavior that “threatens or endangers the health or safety of any person…including physical abuse, threats, intimidation, harassment, or sexual misconduct.” O’Brien would have to appear at a judicial hearing, again without council, where he could contest the charges.
Several university leaders attended that hearing, including: hearing officer Marcus Freeman; Dean Coon; Drs. Lopes and Torres; and Dr. Luz Gonzalez, Dean of the Social Sciences department. Shockingly, even though he declined to watch the video recorded by O’Brien—the one reviewed by campus police showing O’Brien did not violate university rules—hearing officer Freeman found O’Brien in violation of the Student Conduct Code.
Freeman recommended prohibiting O’Brien from coming within 100ft. of CLS staff, faculty, offices, or classrooms, and also barring him from coming onto the 2nd floor of the social sciences building unless he had a class or scheduled appointment. Coon applied the recommended sanctions, and further placed O’Brien on disciplinary probation through the Spring 2012 semester, well after he was scheduled to graduate. Such punishments, which could not be appealed, meant that O’Brien no longer could serve as president or treasurer of the Fresno State YAL chapter or on the school’s student council.
Naming Coon, Torres, Lopes, and more than 25 other school faculty and staff, O’Brien filed suit in Fresno County Superior Court for violation and conspiracy to violate his civil rights to free speech, due process, and equal protection. The suit also claimed that the California Code of Regulations, “which authorizes branches of California State University to discipline students for conduct that ‘threatens or endangers the health or safety of any person…including…intimidation [or] harassment,’” was unconstitutionally vague.
In May of 2013, nearly a year-and-a-half after his panel hearing at Fresno State, the District Court for the Eastern District of California rejected the case, stating that O’Brien’s actions were “nothing short of harassment and at least attempted intimidation.” The court also held that the California Code of Regulations was not “unconstitutionally overbroad or vague.” On appeal, the Ninth Circuit upheld the lower court:
[This] circuit has recognized the needs of educational institutions to protect their employees and students from potentially harmful conduct… We therefore conclude that [the California Code of Regulations] is neither unconstitutionally overbroad nor vague. Rather, it permissibly authorizes California State University branches to discipline students who engage in harassment or intimidation that threatens or endangers the health or safety of another person in the university community.
That a state university and two courts can conflate a student’s asking professors questions while recording with “threatening” and “intimidating” behavior is disconcerting.
For one, what does this signal to student journalists? In recent years we’ve witnessed outright hostility on the part of professors (state employees) toward student media. Recall last year’s infamous case in which an assistant professor of mass media at the University of Missouri asked for “some muscle” to prevent student journalist Tim Tai from taking photos of campus protestors.
But let’s step back even further. What does this case mean for campus free speech on the whole? Speech restrictions and the “my sensitivities trump your right to speak” mentality seem to be ubiquitous on campus. What sets this case apart to a degree, though, is that the roles played by student and professor have been reversed. As I wrote last year, it’s typically students who hold their professors hostage by claiming offense to even the most innocuous comments or behavior. But here we see the opposite: faculty teaming up to infringe on a student’s free speech rights.
If there is one bright spot in this controversy it’s in the Ninth Circuit’s reversal of the district court’s ruling that O’Brien did not present enough evidence to refile suit against a small handful of school employees for violating his First Amendment rights. This does not mean O’Brien will ultimately find favor in the court system—after all, if he goes this route, his case will be heard by the same district court that rejected his claim the first time.
Not unlike “affirmative consent” rules regarding sexual assault, which have become popular on campus in recent years, vague student conduct regulations such as those at Fresno State are subverting students’ due process rights. But what campus leaders fail to recognize is that their rules and actions undermine the very institutions they claim to protect, and along the way many young people like O’Brien are forced to suffer.