On February 24, 1969, the U.S. Supreme Court ruled 7-2 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (Tinker v. Des Moines Independent Community School District, 393 U.S. 503).” This effects both high schools and colleges. The Court ruled that the First Amendment applied to public schools, and school officials could not censor student speech unless it disrupted the educational process.
This Tinker decision has collected a few chips in it, but it still stands. A fraternity calling its neighboring sorority bawdy names and/or even using racial slurs is protected speech. A fraternity member threatening bodily harm to a particular person in that sorority is not. A college presentation of the Vagina Monologues is also protected speech. (I question the funding mechanism for Boise State University’s Vagina Monologues; I do not question the right of people there to have the presentation.) Yelling “Fire!” in a theater unless there really is a fire is not protected speech. Protected speech in many cases can be offensive; this usually collides with administrators’ desires with everyone being civil. It is also one reason anti-bullying legislation has to be watched carefully as well.
In 2013, the Department of Education wanted to use the University of Montana as a national example for colleges and universities to implement some speech codes via Title IX and expand upon what was done in the “Dear Colleague” letter. In those documents, the bawdy name calling and theVagina Monologues would cause problems under Title IX. In fact, asking a person out on a date, not using genderless pronouns, overhearing music or a joke with sexual content, and even assigning a book for reading with lurid imagery would cause problems under Title IX. For some reason Attorney General Eric Holder did not want to answer Senator John McCain’s questions involving this.
Using the Tinker decision for a college to not take a complaint, means the college created a prior restraint to “due process.” If the college has a retaliation clause in their policies, use it against them in a court of law for breach of contract. The college should take the complaint; acting upon the complaint is a different matter. Universities and colleges that usually have problems with the 1st Amendment usually have problems with “due process” and following their own university policies.
During August 2015, Congressional Judiciary Chairman Bob Goodlatte (R – Virginia) sent letters to both Boise State University President Bob Kustra and University of Idaho President Chuck Staben. They ignored responding to these letters. They were asked why their university policies do not comply with the 1st amendment and how will they fix this problem. In Staben’s case, I can be more lenient because he is a new university president. Who on Staben’s staff failed to inform him on the importance of this? Kustra does not have that excuse. Technically, any student in good standing at their universities can sue them in their personal capacities in spite of the university policies not being violated. Enumerated rights in the U.S. Constitution gives standing in the 9th Circuit even if damage has not occurred yet.
With respect to “free speech” zones, I agree with the courts that consider them unconstitutional. I knew Boise State University had them, but was surprised to see the University of Idaho has them as well (http://www.uiargonaut.com/2015/12/03/we-hear-their-voices-dozens-of-demonstrators-stand-in-solidarity-with-civil-rights-protesters-in-missouri/). Some shenanigans occurred at the 2014 Idaho Republican State Central Committee meeting, which occurred in Moscow, Idaho, that prompted this question and many of those attendees thought it was a joke. The Idaho Reporter did a good job on presenting pertinent details (http://idahofreedom.org/free-speech-areas-attempt-to-create-thought-free-areas/ ), but I would not exclude the possibility of a Republican putting up that “free speech zone” sign.
If you believe you can find a safe harbor as an employee, teacher, or professor, think again. Earlier in December, the Idaho Statesman reported on some reorganization involving Boise State Public Radio and some reporters claiming President Kustra’s staff unduly influenced contents of radio broadcasts (http://www.idahostatesman.com/news/local/education/boise-state-university/article49792865.html). The university moved the radio station out of the Office of the President and into the Extended Studies department just before station manager John Hess resigned. Kevin Satterlee, the University’s Vice President for Campus Operations and General Counsel, investigated the complaint and found no wrongdoing.
The General Counsel reports directly to President Kustra and an investigation occurring from him doesn’t hold much weight. The U.S. Supreme Court case Garcetti v. Ceballos would prohibit any Boise State University employee from publicly criticizing President Kustra; they have reason to fear like keeping their jobs. This Garcetti v. Ceballos case made no provisions for whistleblowers and one of findings was public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job. I hope Reporters Emilie Ritter Saunders and Adam Cotterell still have their jobs at their next potential contract renewal. One of the local AM radio stations even made a remark expressing “The University administration even made the boisterous claim they could do anything they wanted since they owned the radio license.” I belive freedom of the press is no longer secure. I also wonder if the student newspaper is free of undue influence on what will they be allowed to publish; I would suggesting looking into their hiring practices.
If you believe tenure will protect your professors and teachers, you are mistaken. About six years ago at Idaho State University, Professor Sadid Habib publicly criticized their university President’s desire to create a medical college there. The tenured civil engineering professor of 22 years of service was fired. As a result of this, their faculty senate gave their president a “vote of no confidence.” University President Arthur Vailas with the blessings of the State Board of Education retaliated by having the faculty senate disbanded and reformed with new leadership. In short, the right to peaceably assemble and the right to petition were abridged for those faculty members by the retaliation. In short, the original reason for tenure is dead and teachers and professors might not be able to protect the students when administrators go awry.
There is some hope involving the “Right to petition” in Idaho. A Pocatello school lunch lady recently lost her job over giving a hungry student with limited means a free lunch. The public outrage led to the embarrassment of school officials and they offered her job back. I do not know if she has taken her job back yet; she has to consider if heavy-handed tactics could occur again and there will not be any press to come to her defense five months from now.
The establishment of religion clause is often mistaken for the concept of separation of church and state. In Idaho, the state constitution embraces the concept of separation of church and state in such a way that it actually violated a U.S. Supreme Court decision involving the 1st Amendment. The U.S. Supreme Court has long held a “neutral observer” position when government or public schools and colleges are involved; government and government supported entities are not supposed to be friendly or hostile to religion. It does not mean government can’t acknowledge the values and customs that are derived from religion. It does not mean government must accept an atheistic viewpoint. For example, in one well-established U.S. Supreme Court decision, the justices considered a comparative religion class should be a capstone class for a good college education. The Idaho constitution does prohibit the teaching of any comparative religion class and any philosophy class that contained materials derived from religious teachings in our public schools and colleges.
In 2003, Boise State University denied funding to Campus Crusade for Christ for being religious; this club had been funded before this 2003 denial. The Boise State University administrators claimed our state constitution directly trumps a U.S. Supreme Court decision for six years, before they were sued. Oops! Boise State University still didn’t learn anything and was sued again in 2014 by the Abolitionists4Life; Boise State University settled. Many people people view abortion as a religious matter as well as a political matter. The Boise State University administration decided to have different standards for the Abolitionists4Life than the Planned Parenthood student group and the Secular Student Alliance, who had pro-abortion messages; this violated the 14th Amendment. The 1st Amendment prohibits the government from compelling citizens to express or support a message not of their own choosing. Boise State University’s policy allowed its administrators to control content of what is presented and these administrators took an aggressive view to what and how this student group wanted to present their messages.
Well at least the Abolitionists4Life group had a place for their presentation. Shortly after the guns on campus legislation passed in 2014, Boise State University tried to stop the Young Americans for Liberty from inviting Dick Heller to speak. Dick Heller had the 2008 landmark U.S. Supreme Court case where the Court ruled the 2nd Amendment meant guns were a part of the right to self-defense. For many conservatives, the 2nd Amendment is the enabling clause for the 1st Amendment. I have a good friend that expresses, “Liberals have been trying to get rid of the 2nd Amendment for the last 65 years; it doesn’t surprise me that they are trying to get rid of the 1st Amendment as well.” Less than 24 hours before the event, Boise State University demanded that Young Americans for Liberty pay $465 in security fees, or have their event cancelled with the University using a strawman argument. I heard a collection at the event occurred to pay for security. It looks like Boise State University doesn’t care for the right to peaceably assemble. Boise State University did rescind the security fee only in the face of political protests across the political spectrum.
I guess the government supported message is “Move along. Move along. There is nothing to see here.” I would suggest bring along a camera, find a comfortable place to read Orwell’s “Animal Farm,” and enjoy a nice beverage. You should savor your books like a good meal. How is it one animal is more “equal” than another animal?
