Free Speech Under Assault at Sinclair Community College

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That explanation didn’t fly with Kissel, who sent a second letter on March 23rd, copying Ohio Governor John R. Kasich and Ohio Attorney General Mike DeWine, stating that “free speech remains chilled at SCC so long as the Student Code of Conduct impermissibly bans “distribution … of materials on Sinclair owned or controlled property.” The letter called for Sinclair to bring the college’s policies into compliance with the First Amendment. The college didn’t respond. On May 2nd, a third letter addressed to Lawrence Porter, Chair Board of Trustees, Sinclair Community College, was sent.  In it Mr. Kissel noted that “SCC maintains two conflicting policies regarding distribution of literature, both of which are unconstitutional.” The letter notes that while “it might be constitutional to ban distribution of materials by students in a classroom during class time, it is not constitutionally permissible to ban such distribution after class. Indeed, such locations are exactly where the marketplace of ideas should be at its most robust.”

Back to Ms. Iseli. When I pressed her on whether or not Borel-Donohue could distribute literature once class had ended, she told me the college had “asked” Ms. Borel-Donahue to refrain from doing so. When I asked what would happen if Borel-Donohue decided to ignore the “request,” Ms. Iseli, who explained that she “was not an attorney,” speculated that the Code of Conduct might be used to discipline Borel-Donohue.

The Code of Conduct contains three levels of “Prohibited Behavior.” They escalate from “First Time Misconduct or Minor Violations,” to “Repeat Misconduct or More Serious Misconduct,” to “Major Misconduct.” Ms. Borel-Donohue has ostensibly committed a level one violation, which prohibits “Solicitation, distribution, selling or promotion of materials on Sinclair owned or controlled property.” Presumably, Ms. Borel-Donohue, who has said she is considering defying the ban, could be charged with a level two violation were she to make good on her intentions.

Yet Adam Kissel, with whom I also spoke with on Friday, is confident that FIRE and Ms. Borel-Donohue will ultimately prevail. He noted FIRE”s “perfect” track record with respect to court decisions regarding students’ First Amendment rights versus campus speech codes, and he noted that part of the Higher Education Act re-authorized by president George W. Bush in 2008–with bipartisan support–contained a sense of Congress resolution stating that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” With respect to due process, Congress noted that college “students should be treated equally and fairly” adding that any student sanctions should be imposed “objectively and fairly.”

In an interview last February, after a speech at the meeting of the Conservative Political Action Committee (CPAC), Kissel explained that “two thirds of public universities have un-Constitutional speech codes, blatantly un-Constitutional,” adding that college campuses “have all these offices for diversity that are telling students, ‘no, not only shouldn’t you say the things that offend people, but you can’t, and we’ll punish you if you do.’” He also noted that “if the average citizen knew what was going on on campus, they would be outraged.”

Here’s hoping Mr. Kissel is correct. For far too long, far too many universities have elevated the inappropriately coined “right to not be offended” over the Constitutionally-protected right to speak one’s mind absent fear of retribution. In an Orwellian sense, Mr. Kissel noted that “intellectual diversity,” which is invariably cited by college officials as the reason for speech codes, “is last on the list, if it shows up at all” on college campuses. Apparently Sinclair Community College is no exception–at least for now. As Kissel remarked to me, “sunlight is the best disinfectant.” The sun is now shining on SCC.

Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.

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  • sedoanman

    I have been a monthly contributor to FIRE for years and have read all their newsletters in which they describe their speech code cases. Not one, not even one contained a case in which the code was unconstitutional and in which those responsible were fired.

    One would think that normal people would look at what is happening to speech codes in other schools and clean up their own act, but no. We are dealing with self-righteous liberals who think they are exempt from the law; and since nothing happens if they are caught, they adopt a "why-do-anything-to-correct-our-policies?" attitude. So organizations like FIRE are forced to dismantle the "Great Pyramid" one block at a time.

    • ajnn

      "two thirds of public universities have un-Constitutional speech codes"

      As a practicing attorney I see these 'speech codes' as an unparalleled opportunity to advance conservative issues and themes.

      Enforcing these codes against the intolerant and provacative Left can be an effective tool to bring out the issues.

      THESE 'SPEECH CODES' ARE A GOLD MINE FOR CONSERVATIVE ADVOCACY !!!!

      • sedoanman

        "As a practicing attorney I see these 'speech codes' as an unparalleled opportunity to advance conservative issues and themes."

        "Enforcing these codes against the intolerant and provacative Left can be an effective tool to bring out the issues."

        "THESE 'SPEECH CODES' ARE A GOLD MINE FOR CONSERVATIVE ADVOCACY !!!! "

        Pray tell how.

        • ajnn

          under the law, an agency is required to follow their own rules.

          applying these rules to the racist jew-hatred will embarreass them and win a case.

          the injuries are inferred as 'impairment of educational opportunity', as indicated in Brown. v. Board of Ed.

          This is very fertile ground for aggressive, very aggressive advocacy.

  • wingwiper

    Incrementalism, by definition.

    And, it has been destroying our culture one day at a time for the past sixty years.

    • Ozzy

      The past Sixty years would put us at, when,.. approximatively 1950, women had only had the vote for 30 years and there were still laws concerning a citizen's color. this was our culture. and it needed destroying.

      • wingwiper

        And, this is what was decided it should be replaced with:
        http://hotair.com/archives/2011/05/11/video-texas

      • ajnn

        Hmmmmm, so you want to 'destroy' rather than 'reform' ? classic.

        I wonder how many millions will die from your 'destroy' prescription ?

  • John

    While Congress passed a resolution in 1998, that is without any legal meaning. It is simply a resolution–right up there with recognizing a college team that wins a national championship.

  • StephenD

    Just makes it that much more acceptable when we're told by an international court that we cannot say something that may offend Islam…that would be hate speech. After all, "that's not who we are"…I would bet and give odds that our POTUS would back such measures. How far away from such proposals do you think we are; especially when our Academia is supporting it?

  • dpg

    The policy as qouted does not restrict distribution outside of the buildings, on the campus. There may also be other "non-working" areas where it is permitted. The US
    Constitution applies to the federal government and does not regulate work places. You do not have free speech at work. Ironically the same folks who are so defensive about their right to free speech are less concerned over the established ( by the Supreme Court of the United States) constitutional right of women to make decisions about their own bodies and health and to choose to get an abortion if necessary. Some are even OK with harassment, terrorism (bombings) and murder (including a security guard at a clinic and a doctor in church) to deny women that right. So hand out your literature in the light of day, not in the classroom.

    • ajnn

      universities take federal funds and, more importantly, they are often arms of the individual states. And the states have constitutions with the same 1st A rights for their citizens.

      your point is only relevant for a private college.

  • mike

    education about breast cancer link to abortion should be told, if you can prevent women from dying from breast cancer, truth may hurt but dying a slow death hurts more.

  • Prfsr Dubious

    I would be interested to see what other "literature" has been allowed to be passed out without restrictions. If they truly don't allow any, except in approved areas, it wouldn't be so bad, but my suspicion is that is not the case. How much propaganda do the professors pass out during class time?

  • Bob

    I am a bit concerned about the clause "without fear of retribution". The First Amendment does not guarantee that the speaker is free from consequences of actions–only that the speech is prohibited. It is much more reasonale to expect the clause "without fear of retribution from public sector institutions or employees of said institutions". After all, if someone in their private life wishes to yell bad things at the speaker or boycott the speaker's place of business then that is their right as well. But it is absolutely unacceptable for any publicly funded institution to do that.

  • The_Lord_Regent

    I wonder if the "university" administration can be charged criminally for 1st Amendment violations under the Klu Klux Klan act. Opinions?

    • sedoanman

      Interesting. See http://www.enotes.com/major-acts-congress/ku-klux… and page down to "KEY PROVISIONS AND THEIR CURRENT RELEVANCE".

      As a sidebar, I'd like to see someone pursue anti-sexual harassment laws as bills of attainder because they target only men.