Professor Fires Off Email In Defense Of Student Forbidden From Handing Out Copies Of Constitution


techdirt.com
November 2, 2013

On Constitution Day (Sept. 17th), a student of Modesto Junior College, Robert Van Tuinen, was prevented by Modesto Junior College administration from handing out copies of the Constitution. The college apparently believes free speech is limited to a single small concrete slab on campus, generously named the “Free Speech Zone.” Contrary to the First Amendment (and the state’s laws governing public university policies), MJC restricts free speech to no more than two people per day, subject to approval of the administration.

Van Tuinen set out to challenge the stupidity of this policy and MJC administration obligingly played its part, resulting in a story that spread across blogs and news sites. As a result of its actions, the staff at MJC was “subjected” to insults, death threats, and even worse, an “unfair and negative portrayal” by the media. While no one condones death threats, one would be hard pressed to agree with Jill Stearns, the president of MJC, that the portrayal was “unfair” or that the school’s willingness to place policy above all else, including the Constitution and common sense, wasn’t deserving of a few disparaging remarks.

Shortly after MJC went into damage control, Van Tuinen sued the school for violating his First Amendment rights. Van Tuinen is seeking a permanent injunction against the school’s unconstitutional policies, as well as damages and court costs.

Now the organization that originally brought the Van Tuinen’s experience to national attention (FIRE) brings news that a Modesto Junior College professor has written a lengthy email to all Modest Junior College faculty members to call attention to the college’s actions which the administration seemingly wants to let recede into the background.

Professor William J. Holly was kind enough to forward his entire email to me, as well as provide some additional info on California laws governing schools and students’ First Amendment rights, as well as this bizarre and tense interaction with school security over the supposed rule changes President Jill Stearns said were underway.

I do not know what rules are now in effect. Last week I stopped by campus security and asked what the rules now were, and he referred me to ASMJC office on the other campus. I said he must know what the rules are since he was responsible for enforcing the rules. He kept pushing the paper with the name of the office on it, saying he was referring me to that office. It got a little tense because I kept saying he must know the rules and should be able to let us know what the rules are. Finally, he said he was not allowed to discuss this with anyone because they are under litigation. Stearns says the rules are being reviewed. Does that mean there are no rules?

Stearns’ statement says the college is “evaluating its policies and procedures.” It also says this:

There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.

There may not be one now, but that requirement was certainly in place back in September.

It also says this.

To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse.

Hilarious. Pity the poor people who took offense at Van Tuinen being accosted by a campus cop and repeatedly told he’d need to get on the waiting list for the Freedom Slab and mistakenly believed it violated his First Amendment rights.

Holly does a wonderful job in his email dismantling Stearns’ non-apology.

[I]t is unclear what she means when she addresses “those who were offended by the appearance of censorship.” Van Tuinen was not subjected to the mere “appearance of censorship.” He was silenced and he was prevented from distributing his literature. That is outright censorship, pure and simple, whether it resulted from a misunderstanding or not.

But Holly’s letter is more than just a deconstruction of Stearns’ statements and MJC’s dubious policies. It’s also a wakeup call directed at his colleagues, many of whom were either unaware of this event or simply stood by and let incident pass by not remarked on.

Dear Colleagues:

The paper attached above (Destructing Causal Deconstruction) exposes some of the absurdities that are committed in the name of “Deconstruction.” I think it is a good read — clear, amusing, imaginative, and instructive. If you ever wondered what “deconstruction” is really about, you would be hard pressed to find a better introduction. One question that I cannot answer, however, is whether or not I would be arrested by a security officer if I insisted on wandering about the quad on our campus, handing out copies of this paper and discussing it with those who might be interested in the topic. This is not a silly question…

Nearly a month ago (Sept. 17th) one of our MJC students, Robert Van Tuinen (also a veteran), was trying to pass out copies of our federal Constitution on Constitution Day. He was prevented in this exercise of free speech by an MJC security officer, and then by an official at the office of Student Services who told him he was allowed freedom of speech and the right to pass out literature only in certain tiny restricted areas on our campus, and then only after booking a reservation — which would not be available until the following month!

I am puzzled why there has been no faculty outcry over this ugly incident. Why are we not standing up for our student who only wanted to exercise his constitutional right to free speech? Do we really want to be known nationwide as the college that wouldn’t let a veteran pass out copies of our Constitution on Constitution Day?

Holly’s not being facetious about “nationwide.” The story was picked up by the Huffington Post, the Washington Times, FOX News, the L.A. Times, along with numerous other well-read sites like Reason, the Daily Caller and National Review Online. But Modesto Junior College itself? Apparently it isn’t interested in providing current or prospective students (or faculty, for that matter) with anything more than the president’s statement.

The First Amendment in pertinent part says, ” Congress shall make no law … abridging the freedom of speech, or of the press …” Some have taken this to be a right you have against the Federal Government, but not (say) against the State of California (as though the rights you thought you had simply in virtue of being a citizen of the United States could be nullified by the particular state in which you live). Happily, the point is largely moot because the constitution of California has its own guarantees of rights that largely parallel the U.S. Constitution Bill of Rights — including separation of church and state, etc. Guarantees of freedom of expression even exist in parts of the California Code of Education, and even the University of California has a constitution that holds out these rights, and even individual campuses have their own codes regarding such things as Academic Freedom. At CSUS and at PLU, the rules that claim Academic Freedom for faculty make clear that such freedom should extend equally to students!

The most pertinent part of the California Education Code is this section.

66301. (a) Neither the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction 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 Section 2 of Article I of the California Constitution.

Considering Van Tuinen’s lawsuit, the directly-following subsection is also relevant.

(b) A student enrolled in an institution, as specified in subdivision (a), at the time that the institution has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon a motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section.

Given the state law governing the public college, it would appear that MJC’s free speech policies are in violation of state law, not to mention the state’s constitution, even granting a very generous reading of “time, place and manner” wording.

Holly also questions the “formal apology” extended by the school to Van Tuinen. Whatever it was (and no one has seen it but Van Tuinen and administrators), it’s clearly not sufficient.

[W[e are told that a formal apology has been provided the student. It seems to me, however, that apologies in such cases are best made in public. I think Van Tuinen would want a published apology, a public admission that MJC had no right to deny him the exercise of his liberties that they did, and a promise that no other students would have their rights similarly violated. And, since the violation of the rights of one of our fellow citizens violates us all, I believe that we all are entitled to see a copy of that apology, to see the particulars of the concessions made, and to see in what manner those liberties now are affirmed that then were denied.

As Holly points out, the fact that Van Tuinen is proceeding with his lawsuit is a good indicator that the apology offered wasn’t satisfactory.

Holly then goes further, suggesting what should be done, not only to satisfy Van Tuinen, but to make sure other students know their rights are protected and ensure this sort of restriction doesn’t make its way back into the school policies in the future.

In one interview, [Van Tuinen] has said that he is not doing this for the money. I think what he wants is a civil rights victory. That should be easy to give him, especially if President Stearns is right this all has just been a misunderstanding…

If he doesn’t really care about money, if he just wants public acknowledgement that he was wronged, perhaps we should offer this: Buy him a couple thousand copies of the Constitution or of the Bill of Rights, and offer to make the individuals he has sued do community service that is relevant. Make them each do twenty hours of community service that consist of passing out copies of the Constitution and explaining to people the importance of everyone’s right to free speech. That ought to make him whole. And, to show my sincerity, I hereby offer to do 20 hours of such community service myself. Perhaps I too bear part of the responsibility here, because this one flew under my radar too. I did not check to see if my students’ rights to free speech were properly protected. Sometimes the implications of rules just do not strike us until we see them enforced.

Summing things up, Holly asks what some famous free speakers would run into if attempting to speak on MJC’s campus.

Now, if you do not like my suggestion that we should have a policy of completely free, unfettered and unqualified freedom of thought and expression on this campus, just ask yourself this one question: Suppose that Thomas Paine, the great pamphleteer (“These are the times that try men’s souls…”) were to come to MJC. Would you make him show his ID or make an advance appointment? Would you sic campus security and Student Services on him before allowing him to distribute his literature? Hell, what would you do if Jesus came? Would you have Student services tell Him he needs an appointment in advance, that the free speech zone is booked up until next month, and that He needs to confine his speech to the designated free speech zone areas? I say, Let Freedom Reign!

Holly’s effort to light a fire under his colleagues is admirable. Many people are too willing to defer to existing policy, especially if it doesn’t apply directly to them. Van Tuinen pushed back against an unconstitutional policy and has brought the idiocy of campus “Free Speech Zones” back into the national limelight. Holly doesn’t suggest throwing away all restraints on speech (exempting classrooms and faculty offices in order to prevent disruption of educating), but his view of what a “Free Speech Zone” should actually include covers far more area than MJC’s infamous concrete slab.

The entire email is worth a read, as is his Deconstructing Casual Deconstruction. Holly’s defense of students’ rights is a rarity in institutes of higher learning, many of which seem to believe the restraint of speech somehow creates better students.


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