Tuesday, September 2, 2008

FIRE and Free Speech on Campus: Are the Claremont Colleges Violating the California Constitution?

The following originally ran in the September 2, 2008 issue of The Claremont Independent.


When independent filmmaker Peter Musurlian produced a YouTube video critical of a CGU lecture of Turkish Diplomat R. Hakan Tekin, the last thing he expected was a call from Paul Silvio Berra, a high-priced Santa-Monica-based attorney retained by CGU telling him to take it down.

The lecture, "The Role and Challenges of Turkey in a Globalizing World," took place on June 10 and was open to the public; Musurlian, who filmed the talk for a local news network, felt he had every right to be there. "I was filming openly and even asked a question," Musurlian said, calling the experience "very pleasant." "I never expected to be intimidated by CGU's attorney."

But intimated he was. After a stern conversation with Berra, Musurlian created a website, Claremontgenocideuniversity.com, where he put up all of his correspondence with the Santa Monica lawyer, the promotional material used before the lecture, and an open letter to President Klitgaard reminding him of the press freedom guaranteed in the First Amendment.

According to claremontgenocideuniversity.com, Berra called Musurlian on June 23 and said that he "had no authority to post the video" and informed him that CGU had contacted YouTube to take it down. (YouTube eventually put the video back up on July 10 after it found that it didn't violate their policies.) Berra did not return phone calls after repeated requests.

According to Musurlian, Berra told him that filming the students constituted "harassment" and demanded that Musurlian blur out the faces of the students he filmed, citing the potential privacy concerns of the students present. Musurlian complied, though he doubted the legality of the harassment charge, and felt that he didn't have to under the law. Musurlian says that no student objected to his filming, and Claremont Independent inquiries into concerned students yielded no returns.

The story, covered first by this author on The Claremont Conservative and later by the press, eventually made it to the Society of Professional Journalists and the Foundation for Individual Rights in Education (FIRE), a foundation dedicated to individual rights in higher education.

Luke Sheahan of FIRE does not think Musurlian was guilty of harassment at all and sees the censorship as part of a larger effort on college campuses to silence politically sensitive speech. "Real harassment is a serious crime, and every time it is misused by a college or university it cheapens the experience of those who are true victims of harassing behavior," writes Sheahan on FIRE's blog, The Torch.

Adds Azhar Majeed, also of FIRE, "For conduct to qualify as harassment, it must be so severe, pervasive, and objectively offensive that it interferes with, and effectively bars, one's equal access to educational or work opportunities."

A History of Censorship on Claremont's Campuses

The harassment argument is often used to censor speech that politically correct groups find unattractive on the Claremont Colleges, even though censorship, including on private colleges or universities, violates California's so-called Leonard Law. Passed in 1992, the Leonard Law safeguards students right to freedom of speech "and other communication" and allows students to file civil action lawsuits to seek injuctive or declaratory relief from private or public colleges.

In 1995, Stanford Law student Robert J. Corry and eight other Stanford students sued Stanford over a speech code and won. The Superior Court of Santa Clara County found that "a private university student has the same right to exercise his or her right to free speech on campus as he or she enjoys off campus." Speech codes that seek to protect minorities over the First Amendment were "overbroad" and could not stand. The court specifically found that Stanford's speech code was content-based, "selecting for special treatment certain disfavored topics."

Given that most of the speech restrictions at the Claremont Colleges - so-called "bias-related incidents" - are specifically content-based, this case raises interesting questions for the administrations of the 5Cs. What authority do the Claremont Colleges have to police bias-related incidents?

Sadly, Claremont McKenna is no stranger to the Leonard Law either. In 1997, Brad Kvederis sued Claremont McKenna after he refused to attend sensitivity training for publishing an obviously satirical newsletter under the pseudonym Johnny Gestapo. The profanity-laced newsletter poked fun at the drinking culture on campus and took quotes out of context to make them more humorous. According to Kvederis, three girls - only one of which was mentioned in the newsletter - filed harassment complaints with the administration; "probably fearing a lawsuit," the administration kicked him out until he attended a sexual harassment seminar.

Geoffrey Baum, then assistant vice president for marketing and public relations, argued that Kvederis had gone too far. "From our perspective this was a sexual harassment issue," Baum said at the time. "We are required to provide an environment free of sexual harassment." Just why the college, which doesn't have any of the due process safeguards or resources as an actual court, is required to do so is an open question. During the proceedings, the school undoubtedly violated Kvederis's right to fair trial when it admitted into evidence a conversation that Kvederis had had with one of the girls who he had offended. Unbeknownst to Kvederis, she had recorded the entire conversation in direct violation of California law.

But Kvederis's attorneys from the ACLU disagreed and argued that Kvederis's speech was protected. Initially CMC won, but Kvederis appealed and the parties settled out of court for an undisclosed sum several years after Kvederis had left campus.

Since the Kvederis lawsuit, it has become standard on the Claremont campuses to threaten harassment charges when the speech offends.

In 2003, The Claremont Portside retracted a story that accused CGU professor Harry V. Jaffa of harassment and accused him of saying that homosexuals should be shot. He said no such thing and the Claremont Institute, for which he worked, threatened a lawsuit unless a retraction was printed. It was, but it established a nasty precedent where the school newspapers and campus radicals would conduct witch hunts in their quests to unearth what one girl from The Student Life, Pomona's weekly newspaper, has called "the racism all around us."

FIRE and the White Party

Last semester, the Claremont Independent covered the story of the Scripps College Dean of Students, Debra Carlson Wood, who sent a heated letter to Claremont McKenna Dean of Student Jeff Huang and the Scripps student body in which she called Claremont McKenna's class of 2010 racist and sexist for promoting on her campus a "White Party," in which members arrive dressed in all white. The party fliers featured DJ Timbo, the DJ of the party, dancing with two bikini-clad black women.

Although Wood, who is white, did not claim this in the letter or afterward, many Scrippsies and campus feminists saw the images as furthering jezebel or blackploitation stereotypes. But when one of the dancers said that she found it liberating to dance, that charge soon fizzled, as did allegations of racism when it was revealed that one of the party's promoters was black. Excepting The Student Life and the Voice (Scripps), which apologized for Wood, she was condemned across campus and the party was highly attended. Creepily, in language reminiscent of thought police, Wood suggested at the Motley that students who didn't believe what she did were in need of further "education."

After Wood's debacle, FIRE sent an open letter to all of the Claremont consortium presidents reminding them of their commitments to freedom of speech and academic freedom. The letter was also addressed to Staci Buchwald, Associate Dean of Students at Scripps and Jeanne Noda, Vice President and Dean of Students at Harvey Mudd.

In the March 18 letter, FIRE's director for Individual Rights Defense Program, Adam Kissel, detailed several "bias-related" incidents that have appeared on campus. In addition to the Wood incident, FIRE documented the following two other incidents involving Ms. Buchwald and Ms. Noda.

On February 7, after the election results of Super Tuesday had come in, Harvey Mudd College Dean of Students Jeanne Noda e-mailed all students to note that someone had written "Hillary is a foxy lesbian" on a whiteboard. According to Noda, "It seems that the student residents wrote this message as part of a joke, without thinking about the impact it might have on others. It refers to a prominent public figure. The message has been erased. Campus Safety has been notified."

On March 10, Scripps College Associate Dean of Students Staci Buchwald e-mailed all students that "a person wrote a cultural epithet and offensive drawing on the write and wipe board of a student's room." Buchwald asked students to provide information about the "perpetrator." She added, "We are a supportive, caring community and bias related incidents will not be tolerated. Any time a community member becomes aware of a racist, sexist, heterosexist bias incident on our campus, a potential bias incident or hate crime, or any other type of crime, they are urged to [take] appropriate action to combat the incident."

Interestingly, Ms. Buchwald also said that there was "a binder of incidents" available in her office and that "persons wishing to review this binder may do so during regular office hours." I took Ms. Buchwald up on her offer, only to find the so-called binder was filled with her very own email, and nothing else.

FIRE ended its letter by encouraging the schools to honor their commitments to free speech as expressed in all of their handbooks and reminded them of the Leonard Law.

No one at the Claremont Colleges responded to FIRE's letter, but local press featured a statement from Barbara Jefferson, a Claremont University Consortium spokeswoman, who said, "FIRE has threatened with litigation. We have no comment." But according to FIRE, they did nothing of the sort. In fact, FIRE does not even litigate cases at all.

Distorting for the Cause

Often in the campus-wide quest to take stands against racism, homophobia, etc., campus radicals distort the actual nature of the events to serve their agenda. Since FIRE's letter, numerous other "bias-related" incidents have been investigated by this author, only to find them lacking of bias or any real hate.

The most recent of these prevarications is an article written by Lindsay Mullen, "Pomona Begins Investigation Over QRC [Queer Resource Center] Bias Incident," which reported that Associate Dean of Students Daren Mooko was "heading an investigation," "interviewing witnesses," and "working to develop a charge sheet." Even though there was no permanent damage and nothing was stolen, Mullen reported that a flag was stolen from the QRC. In fact, the door had remained locked the entire evening.

Examining the police report from the incident confirms that nothing was stolen, despite claims from Joshua Harris, QRC Interim Coordinator and Graduate Advisor, to the contrary. "Regardless of the intent…the people who work and use this space can't help but feel violated and threatened," Harris told the TSL.

Ironically, Harris disregarded the common sense observation that if one is going to make the claim that hate crimes exist, intent clearly does matter. Incidentally, the "incident" was later found to be the work of drunken students, not of hateful vandals.

But this belief that the intent doesn't matter - only the feelings of the aggrieved - is a mockery of justice, as several Pomona football players know well. These students were called into the office of Marcelle Holmes, Acting Associate Dean of Students and Dean of Women, after someone reported their breakfast conversation. The gentlemen were talking about an alleged hate crime - the QRC "attack" - and they were giving their opinion. It wasn't a hate crime, they said, but a bunch of students drinking in Walton Commons.

As they were leaving Frary, they were greeted by a campus safety officer and Dean Holmes. According to two of the boys, who asked that their names be kept out of any articles, Holmes said that someone overhearing their conversation had reported them for "hateful language." She argued that in the wake of Virginia Tech, they had to check all suspicious behavior before it became a threat; further, they said that the boys were "identifiable white males" so they could understand why "some people" would feel threatened.

All this for having a private conversation. When I asked by email if Dean Holmes would comment, she said no, and, ironically, added that she didn't speak about private conversations.

The privacy of their conversation didn't stop Pomona's The Student Life from "reporting" on that conversation in their security briefs section in its February 22, 2008 issue, with a concocted statement. They "reported" someone overhearing one of the students say, "If I want to take out my frustrations, I would go to the QRC, and if I want to kill someone, I would go to the QRC." The students, of course, deny saying any such thing.

A Double Standard

But the harassment charge and campus-wide emails are rarely applied evenly. This past year, John Swanson PO '10 had his room repeatedly vandalized when he put up political material supporting John McCain for president.

His sister, Ellie PO '04, an Obama supporter, explained in a Facebook note, "Pomona students have thus far poured coffee on John's bumper stickers, ripped off his McCain stickers from his door, stolen his McCain sign from his window, and written "F**K U" on his (new) McCain sign."

Contrary to the many supposed bias-incidents that occur on campus that can be easily cleaned up or erased off white boards, this one resulted in real damage of property.

And yet this most serious of offenses went unnoticed by the Pomona community. No campus-wide email went out to the five college campuses.

For those who choose to fight the political correctness on campus, it's often a lonely struggle; but ultimately, it is worthwhile. Peter Musurlian wrote to Berra, CGU's high-priced attorney, "My paternal grandfather's five young sisters, buried in the Syrian Desert during the Armenian Genocide, already represent Musurlians victimized by bullies."

Now there's something to think about the next time campus radicals try to pressure you from speaking your mind.

Charles Johnson is a sophomore at CMC and an assistant editor of the CI.


Rhymes With Right said...

I think there is serious need for sensitivity classes on the part of two of these administrators.

Staci Buchwald: "We are a supportive, caring community and bias related incidents will not be tolerated. Any time a community member becomes aware of a racist, sexist, heterosexist bias incident on our campus, a potential bias incident or hate crime, or any other type of crime, they are urged to [take] appropriate action to combat the incident." -- I therefore take it that homosexist bias incidents against heterosexuals will be tolerated by Buchwald.

Marcelle Holmes: She argued that in the wake of Virginia Tech, they had to check all suspicious behavior before it became a threat; further, they said that the boys were "identifiable white males" so they could understand why "some people" would feel threatened. Would Holmes be so accepting of students feeling threatened by the comments or presence of "identifiable black males"?

Theresa said...

Just a couple points for clarification:

On the QRC incident - the door didn't stay locked all night. There is a slide card access, which was used by one student at the time of the incident, and that student admitted to entering. Also, the initial police report didn't show anything stolen because the flag wasn't reported missing until the next day.

On the breakfast conversation - The TSL quote is what the initial student report was about. It was the threat of violence that caused a response in the first place. (If the reporting student lied, well, that's a different issue.)

Did Mr. Swanson report the damage of his property to anyone? That's just as much a crime as anyone else, but I never heard that one get reported.

John said...

Hi Theresa, this is John (Swanson). After the "F*CK U" incident, I immediately reported the damage to my property to Dean Feldblum (she's the one who sends out the "bias incident" emails to Pomona students). I told her that I was aware that this was not a "hate crime" as defined by the Pomona handbook (which specifically excludes political statements), though interestingly enough it would qualify as a hate crime according to California law. Despite this, I asked her what she thought about notifying the student body that "intolerance of opposing political beliefs--especially when that intolerance is backed up by vandalism and theft--is not acceptable." Her response? This was vandalism, nothing more, and she'd forward it to the J-Board. (I'm sure they're still hard at work attempting to catch the culprit. I'm sure they're just waiting for the DNA test results to come back from the lab.)

I was fairly shocked by the cavalier response, and responded that the technical definition of a bias incident or hate crime notwithstanding, I would expect that the school would have an interest in informing its students about attempts to suppress political speech on campus through vandalism. She told me she'd raise the incident with the "Incident Response Team." That was on May 7. I haven't heard anything since. We'll see if anything happens this semester, but even if something does happen (extremely doubtful), it seems a bit silly to shuffle this through committees rather than just sending out a quick email to students.

Theresa said...

If (when? unfortunately) this happens again, please raise the issue with the appropriate facility on campus for handling crimes - Campus Safety. For purposes of general group enlightenment, here's the California Penal Code's take on this:
"For purposes of this title, and for purposes of all other
state law unless an explicit provision of law or the context clearly
requires a different meaning, the following shall apply:
(a) "Hate crime" means a criminal act committed, in whole or in
part, because of one or more of the following actual or perceived
characteristics of the victim:
(1) Disability.
(2) Gender.
(3) Nationality.
(4) Race or ethnicity.
(5) Religion.
(6) Sexual orientation.
(7) Association with a person or group with one or more of these
actual or perceived characteristics.
(b) "Hate crime" includes, but is not limited to, a violation of
Section 422.6."

Unfortunately, political affiliation does not generally fall under hate crime legislation. Be that as it may, if you go to file a crime report at CampSec (hey, even the dean agreed it was a vandalism, right?) if you express a belief that it was bias-related, they can call out Claremont Police to make an evaluation of the situation for something official. And when you're the victim of a crime, no one, NO ONE, can tell you that you can't file a crime report, press charges, etc. J-board has its uses, but it should not be, and cannot be required to be, an alternative to the exclusion of law enforcement.

Also, I realized that in my earlier post, while issuing clarifications, I may have come off as disagreeing with Charles. In fact, I generally agree with his points (on this post) about the atmosphere on campus.

John said...

Hey again Theresa,

Interestingly, while the California Penal Code doesn't include political affiliation in its definition of hate crimes, the California Civil Code provides for a right "to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation." And violators of that right are "liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.
(2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney. An action for that penalty brought pursuant to Section 51.7 shall be commenced within three years of the alleged practice.
(3) Attorney's fees as may be determined by the court."

Twenty five thousand dollars. Sadly, even if I ever caught someone vandalizing my property, I'm not sure it'd be worth being forever known as "that asshole who sued a 5C student for $25K over $25 worth of damage."

Anyway... no one ever attempted to prevent or dissuade me from going to the police. I lived in a busy hall, across from a laundry room and next to an exit, so there was really no chance that I or the police would be able to find the person who'd defaced the sign. I figured that punishment of the perpetrator was pretty much out of the question. That's why I only contacted Dean Feldblum about it, partly out of curiosity about whether she would think it worthwhile to send out an email to students.

Theresa said...

Ah, Civil Code. OK, not my forte. ^_^ I am glad, at least, that it was your choice to not file a report, and I am sorry that this happened to you. I wish there was some better way to handle these sorts of ideological differences without resorting to such negativity. So much for higher learning, eh?