Victory for Individual Rights at Pomona College: No-Trespassing Order Reversed for Two Students Who Asked “Disruptive” Questions
by Adam Kissel
March 11, 2009
Pomona College has reversed its no-trespassing order against two Claremont McKenna College (CMC) students who asked several questions and videotaped a public discussion led by a Planned Parenthood representative during Abortion Awareness Week. Two Pomona deans called the questions "disruptive" and instituted the ban without any due process —i.e., without giving the students a hearing or any chance to refute allegations levied by hostile witnesses. After receiving advice from FIRE, the students vindicated themselves in an impromptu hearing, and CMC's president publicly apologized for the denial of the students' rights to due process and freedom of speech. (Pomona and CMC are closely related neighbors in the Claremont University Consortium, which offers benefits and privileges to students enrolled at any of the Claremont Colleges.)
This case was broken wide open by Charles Johnson of the blog Claremont Conservative, who pointed out that the February 19, 2009, lecture was publicly advertised and that the students had ceased videotaping the event when asked to do so, contrary to official reports. Johnson also noted that Pomona College had taken no similar action against truly disruptive events on campus in recent years.
The event, featuring Serena Josel from Planned Parenthood, was publicly advertised as "a more personal look at abortion and reproductive choice" during Abortion Awareness Week. The students in the present case attended the event. After other students asked questions, one of the students in this case began to ask questions as well, while the other student recorded the questions and Josel's answers on video. During this time, a member of the audience pointed out to Josel that the questions were coming from a representative of Live Action, a group known to Josel as an opponent of Planned Parenthood. The student was permitted to continue asking questions. Later, Josel realized that her answers to the student's questions were being recorded. After a discussion about whether the recording was legal (it was), the student doing the recording was asked to turn the video camera off. He did so.
The two Pomona deans responded vindictively on the basis of only one side of the story. Miriam Feldblum, Vice President for Student Affairs and Dean of Students, and Marcelle Holmes, Associate Dean of Students for Student Support and Learning and Dean of Women, jumped to conclusions and embarrassed the school. First, on or about February 27, they sent all Pomona students an e-mail stating that "a group of students interrupted" the event with "disruptive questions." Although the videotape shows no such thing, the deans also wrote that the event was "an opportunity for students from across the Claremont Colleges to learn about deeply personal narratives regarding the experience of abortion ... in a supportive and safe space." Instead, the deans wrote, the students asking the hard questions were "attempting to create an antagonistic space." Finally, the deans suggested that these students were engaging in "harassment or hostile behavior."
Although the deans took more than a week to consider whether the two students were some kind of imminent danger to the campus, they never asked the students for the other side of the story, and they took no special steps to protect the Pomona campus from such outrageous askers of "disruptive" questions. Instead, on March 2, the students were summarily "banned from the entire Pomona College campus" in a "Hand Delivered" letter. The no-trespassing order extended to the entire Pomona campus except for any classes the students might choose to take at Pomona. In the letter, Holmes inferred that the students' "intentional conduct" was "designed to disrupt the proceedings, intimidate participants, and chill the free exchange of ideas." Holmes warned that additional charges might be filed for "invasion of privacy and misappropriation of another person's image without consent, and/or portraying an individual in a false light." Holmes further warned that additional charges might be filed for trespassing in violation of the ban and warned against using the e-mails of participants for the purpose of "cyber-harassment." Furthermore, Holmes demanded that "all original and copies of the recording ... must be surrendered to the Office of Student Affairs" by March 6 on penalty of "further action from the college."
The students refused to hand over the tape, and they promised to fight these abuses of individual rights. The Claremont Conservative published accounts of the actions against the students, and FIRE was contacted. A Facebook group in defense of the two students quickly grew to over 500 members, and angry students and alumni began writing a lot of letters to administrators at both Pomona and CMC. FIRE consulted extensively with one of the students on Saturday, March 7. By Sunday, March 8, Feldblum had received enough pressure to send out a second student-wide e-mail, which claimed that the ban was prompted by "non-speech behavior, and not the content of speech or expression." Strangely, despite the fact that some of the strongest student leaders on one side of the debate had been banned from Pomona, Feldblum also offered to hold a new "open forum on abortion" to be held on the Pomona campus rather than on the CMC campus (CMC had agreed to co-host the forum).
After public outcry, the two banned students finally got their impromptu hearing on March 8. On March 9, the no-trespassing order was lifted in this letter from Feldblum (PDF). Feldblum claimed that the ban was lifted on the basis of "new information."
From CMC's side, CMC President Pamela Gann sent the CMC community a public response that vindicated the rights of CMC students to freedom of speech and due process at Pomona College. Gann wrote, in relevant part:
Upon learning of Pomona's action on Friday morning, March 6, 2009, I also had significant concerns that this action raised important issues relative to free speech and due process, and I and other members of the CMC administration worked diligently over the weekend to address the situation. Along with others, I had to take the time over the weekend to determine as best we could what transpired at the event, and what had taken place at both Pomona and CMC between the time of the talk and the issuance of the ban. We have had to do this without the benefit of a full, formal investigation or formal hearing.
From what I and others have learned, I completely share the concerns expressed that this action was inconsistent with Claremont McKenna College's understanding and application of the free speech and due process rights that exist for CMC students and that should be respected for all students at The Claremont Colleges.
Most significantly, in the absence of some showing of a particularized threat to its campus, it would be inappropriate for any member of The Claremont Colleges to ban a student from a sister institution without first providing appropriate due process, which could include pursuing a disciplinary action against the student at his or her home campus. This is the procedure outlined in the Policy on Demonstrations, and the failure to follow this framework deprived the CMC students of important due process protections.
I am pleased to report that, after further consultation and review, Dean Miriam Feldblum at Pomona College has agreed to withdraw the ban against the two students. Although this is an important step, it does not alter the important fact that the ban was inappropriate in the first instance. I therefore offer my personal apologies to the CMC students involved on behalf of Claremont McKenna College.
As a result of this incident, I have requested that Jeff Huang, Vice President for Student Affairs and Dean of Students, conduct a thorough and complete review of this matter. In addition, I plan to address this matter with Pomona College President David Oxtoby and the Council of Presidents of The Claremont Colleges. Through these steps, I am confident that we will be able to clarify our Consortium-wide policies and procedures in this area to insure that free speech and due process protections are properly addressed with all students at The Claremont Colleges.
This rebuke is a deep embarrassment for Pomona College, and I hope the Pomona deans have learned an important lesson about individual rights. I remain skeptical, however, because Feldblum sent yet another college-wide e-mail late yesterday, apparently trying to defend her actions and to implicate CMC's administration in the denial of due process. Here is the abuse of administrative authority in full view:
When an incident takes place at Pomona involving non-Pomona Claremont College students, our usual procedure is for the home campus of the students in question to talk with those students to gather information and offer their own perspective on the incident. Sometimes, this is the start of a process which will lead to a formal judicial process on the student's home campus. We chose not to seek that route in this situation; while the students' reported behavior broke the trust that we expect of one another as members of a community ... we did not believe that the behavior neatly fell under the student code or other policies. Instead, the reported actions violated community trust, and as reported, potentially created safety concerns for our students, consequences that prompted us to consider a ban, especially as it related to the CMC student videotaping the event.
Feldblum speaks here as though she had the discretion to simply throw away the rules because the two students "violated community trust." Is this really an actionable offense under the student code? Apparently not, for, as Feldblum herself admits, the Pomona deans "did not believe that the behavior neatly fell under the student code or other policies." I might recommend that Pomona President David Oxtoby advise Feldblum to observe the first rule of holes: stop digging.
Finally, Feldblum has changed her mind about the "open forum on abortion" —instead of abortion, the forum will now be about freedom of speech and how it could be possible for Pomona to open events to all Claremont students yet keep some of these events "safe" and "supportive." Let me note that FIRE's Guides to Student Rights on Campus are free online and that FIRE would be glad to participate in this forum. Frankly, I'm not so sure I trust Feldblum to run the show without us.