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Yet another assault on First Amendment rights on college campuses is taking place in Dayton, Ohio. Last October, Sinclair Community College (SCC) prohibited a paralegal studies student, Ethel Borel-Donohue, from distributing pamphlets to her fellow students after a class. The pamphlets focused on the link between abortion and the use of oral contraceptives to higher rates of breast cancer. October is Breast Cancer Awareness Month, but Judge Michael Brigner, Paralegal Program Chair, banned the distribution after receiving a complaint from a student who had had an abortion, telling Borel-Donohue she “had no right to hand out any materials to students in the classroom.” Borel-Donohue, contacted the Foundation for Individual Rights in Education (FIRE) for help, claiming she was worried about repercussions from the incident. FIRE has taken up her cause.
Last Friday I spoke with Madeline Iseli, newly-appointed Vice President of the Sinclair College Advancement Division, who explained to me that SCC has restrictions contained in the Sinclair Community College Campus Access Policy which allows the “Board of Trustees of Sinclair Community College to regulate access to such property in such a manner that the purposes of the Community College are adequately served.”
Sounds reasonable enough. Yet in “Section IV, SOLICITATIONS AND LITERATURE DISTRIBUTION:” paragraph 3, the restrictions become problematic: “Literature may not be distributed in working areas, including: classrooms, laboratories, lecture halls, gymnasiums, libraries, offices, work stations, conference rooms, and corridors leading directly thereto which are an integral part of the work areas.” Ms. Borel-Donohue reveals the Constitutional dubiousness of such restrictions. “So you can distribute literature, but you just can’t do it anywhere. I’ve been to several universities, but Sinclair, it seems, is really totalitarian in their control,” she said.
Enter FIRE. In February, the organization sent a letter to Sinclair President Steven Lee Johnson, noting that campus policies restricting distribution of literature outside of class time are unlawful. FIRE cited a 1979 federal district court decision, Solid Rock Foundation v. Ohio State University to back up its contention. In that case, the court ruled that Ohio State’s attempt to “regulate the distribution of plaintiffs’ publication so that the campus will be ‘aesthetically pleasurable,'” was “likely not to pass constitutional muster” and that distribution of [of literature] is not the kind of activity which “materially disrupts classwork or involves a substantial disorder or invasion of the rights of others.” Furthermore, in addressing the issue of complaints as a basis for restricting the distribution of literature, the court noted that “[T]here may be complaints from those in the campus community who desire not to be subjected to plaintiffs’ views, such as appear to have prompted the University action in the first place. But the University may not, in the interest of protecting particular persons from an unpopular viewpoint, substitute its judgment for the judgment of the individual, who has a right to determine whether or not he is willing to receive plaintiffs’ message.”
FIRE president Greg Lukianoff whittled the ruling down to plain language. “If someone’s claim to be offended by speech were all it took to overrule the First Amendment, we would all be reduced to silence… the Constitution does not recognize a ‘right not to be offended,'” he said.
Yet Sinclair College attorney, General Counsel Lauren M. Ross, who is also the state of Ohio’s assistant attorney general, insists such restrictions do not violate the First Amendment. “Sinclair embraces the principles of the First Amendment to the U.S. Constitution and the right of free speech …Citizens are free to peacefully share their thoughts and distribute literature on campus in common areas such as atriums, eating areas, and much of the Physical Activities Center and the outdoor plazas,” she said. She also sent a letter to FIRE vice president Adam Kissel citing both the aforementioned College Campus Access Policy and the Student Judicial Affairs Code of Conduct as reasons for restricting Borel-Donohue.
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