Law dean who attacked Schill’s response to blackface incident gives nuanced view of best response to disruption of Schill’s State of Univ speech

Back in January, Erwin Chemerinsky, a well known legal scholar and at the time the UC-Irvine law school dean, published this opinion piece castigating UO President Mike Schill’s response to the Halloween blackface incident:

Worries about offensiveness threaten free speech on campuses

All too often campuses are forgetting one of the most basic principle of the First Amendment: Speech cannot be punished simply because it is offensive, even deeply offensive.

The most recent example of this occurred when an investigative report for the University of Oregon concluded that a professor had created a “discriminatory learning environment” by wearing blackface at a Halloween party in her own home. Earlier the professor had been suspended for doing this. No doubt many were offended by her actions, but unquestionably she was engaged in speech protected by the First Amendment and any discipline is unconstitutional.

In October 2016, University of Oregon law professor Nancy Shurtz hosted a Halloween party for about 25 students, faculty members, alumni and family members. Her costume was wearing black makeup on her face and hands, an Afro wig, and a white doctor’s lab coat. She told her guests that she was inspired by the anti-racist message of Damon Tweedy’s memoir about a black man starting his medical career, “Black Man in a White Coat.” She also had recently attended her daughter’s white coat ceremony — a tradition that begins a medical student’s first year — and she noticed an almost complete absence of black men. She said that she meant to draw attention to the lack of diversity in higher education.

Word quickly spread of Professor Shurtz’s costume and by the next day, she was condemned by students, faculty and University of Oregon President Michael Schill in a message expressing outrage to the entire university community. Shurtz was suspended from teaching pending review. Within a few days of the party, 23 law school faculty members wrote a letter urging Professor Shurtz to resign. It concluded: “If you care about our students, you will resign. If you care about our ability to educate future lawyers, you will resign. If you care about our alumni, you will resign.”

University of Oregon commissioned an investigation which concluded: “We find that Nancy Shurtz’s costume, including what constitutes ‘blackface’ through use of black makeup, constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment.”

The report found that her costume exacerbated racial tensions on campus in a way that had a disproportionate impact on students of color, because “minority students [felt] they have become burdened with educating other students about racial issues and racial sensitivity,” and because some students used “other offensive racially based terminology during class times in the context of discussing this event and broader racial issues.”

Professor Shurtz exercised poor judgment in choosing her costume and not realizing that some would be very offended by it. But poor judgment and offending people cannot be a basis for a university punishing speech. In countless cases, the courts have been adamant that speech cannot be punished because it is offensive. The Nazi party had the right to march in Skokie, Ill., despite the offense to its largely Jewish population and the many Holocaust survivors who lived there. Members of the Westboro Baptist Church have the right to go funerals of those who died in military service and express a vile, anti-gay and anti-lesbian message. The government would have almost limitless power to censor speech if offensiveness is a sufficient ground for punishing expression.

Likewise, it cannot be that a university can punish a professor’s expression on the grounds that it offends students and thereby will make their learning more difficult. That is the primary justification for punishing Professor Shurtz.

If that is enough to justify suspending or removing a professor, it would provide a basis for doing so any time a faculty member participates in activities that make a significant number of students uncomfortable.

Under this rationale, campuses in the 1950s would have been justified in firing professors who were perceived as having communist leanings or in the 1960s could have removed professors who participated in the civil rights movement on the ground that such speech made students uncomfortable and interfered with their learning.

I, of course, am not arguing that free speech on campus is absolute. Campuses can punish speech that is incitement to illegal activity or that threatens or directly harasses others. Campuses also can engage in more speech, which long has been recognized as the best response to the speech we don’t like. There can be efforts to educate the community about the history of blackface. There should be debates about whether it is ever appropriate to use blackface even when advocating against racism in higher education.

I would have hoped a law school faculty and a university president who is a lawyer and law professor would have recognized this. Unfortunately, what happened at the University of Oregon is all too typical of what is happening on campuses across the country where the desire to create inclusive learning environments for all students has led to punishing speech protected by the First Amendment.

Chemerinsky is now dean of Berkeley’s law school, and today he and Howard Gillman of UC-Irvine have an op-ed in the Chronicle (gated if off campus), about speech that disrupts the speech of others. It uses the student protest of President Schill’s State of the University speech as an example of the sort of disruption that need not be tolerated, but perhaps should be:

Does Disruption Violate Free Speech?

When student protesters prevented President Michael H. Schill of the University of Oregon from delivering his State of the University speech this month, the group explained, “Free speech is the right of individuals and communities to express themselves without repression from the state. The students are not the state nor the repressors. Taking to the stage and using this platform was an act of free speech — not a violation of it.”

… Contrary to the view of these protesters, individuals do not have a right to prevent others from speaking. It has long been recognized in constitutional law that the “heckler’s veto” — defined as the suppression of speech in order to appease disruptive, hostile, or threatening members of the audience — can be as much a threat to rights of free expression as government censorship.

If audience members had a general right to engage in disruptive or threatening behavior by using loud, boisterous, or inciting speech, it would give any determined individual or group veto power over the expression of any idea they opposed. Only the most benign or inoffensive ideas would be expressible. It would empower people to believe, “If we can’t get the government to censor the speech, then we’ll do it ourselves.”

The only protections against the heckler’s veto are to require officials to make every effort to control the disrupters or to deter their efforts by treating the disruption as a punishable breach of the peace. Of course, it is possible that, despite best efforts, safety or public order cannot be maintained without calling an end to a controversial event. But this should be a last resort, only after exhausting all efforts to control those who are creating the threats against the lawful expression of speech.

… Importantly, however, prohibitions against disruptions also have their limits.

For example, protecting a controversial speaker assumes that the speaker has a preferred right to speak in a particular location at a particular time. When that is not the case — for example, in a true, open public forum on campus grounds, where anyone is allowed to be and to talk — no one speaker has any more rights to express a point of view than any other. If a Christian fundamentalist preacher were to use an open public space on a campus to preach against nonheterosexual activity, there is no reason why members of the campus community could not surround the preacher and enter into a boisterous back-and-forth.

… The reason recent campus controversies are different is that, in those cases, the campus has created a process whereby particular people (for example, student sponsors and their invited guests) are given a preferred right to have access to specific campus venues through a reservation process. Once the campus has followed its policies and assigned rooms for particular activities, then those who have secured the reservations have recognized claims to that space at those times.

In such a limited public forum, and in other places on campus where certain activities are assigned and recognized, those who have been given access to the space for certain purposes have the right not to be disrupted in that activity.

… Also, while opponents cannot disrupt a talk by an authorized controversial speaker, it is true that the speaker has no right to a cooperative or supportive audience.

Those who disagree are allowed to express their disagreement in ways that nevertheless allow the speakers to have their say. In the easiest case this includes the right to hold counterprotests or competing events, or distribute critical leaflets to audience members. But it also includes expressing disapproval as a member of the audience, as long as that disapproval does not undermine the rights of the speakers and their sponsors.

There are always judgment calls in cases of disruptive protests. We favor a more accommodating approach when protesters focus on administrators, for practical reasons rather than because of the First Amendment. Campus leaders have many avenues to express their views, and so an occasional tactical decision to shrug off the disruption is understandable.

But accommodation is much less appropriate when some members of the campus are attempting to prevent others from exercising their rights. In such cases, heckler’s veto principles argue in favor of strong campus rebuffs of the claims of the disrupters. Otherwise, vulnerable or controversial opinions will never be expressible on a campus. And that would represent an abandonment of foundational principles of modern American higher education.

Simply put, the right to speak does not include a right to use speech to keep others from speaking.

Admin declares student protester guilty, then starts conduct code investigation

10/17/2017 update:

I’m no law professor, but I think this is the reverse of the preferred sequencing.

Page down for the video of UO spokesperson Tobin Klinger last Friday, declaring that “the demonstration actually violated university policy”.  Today the “UO Student Collective” facebook page posts this message from Sandy Weintraub, Director of Student Conduct, calling one of the students into his office to begin the process of an investigation under the student conduct code:

On Oct 15, Senate President Sinclair wrote UO President Schill the following:

Dear President Schill:

I’ve had a number of conversations around campus with both students and faculty regarding the student protest of the State of the University address.

Here are some reflections:

The statement from Tobin Klinger to the Oregonian  that the protest was in violation of the student conduct code is unhelpful and has irritated many faculty. Faculty see Klinger as an un-academic public relations spokesperson who has little credibility with the students or the faculty. However, he is an official spokesperson, and so we assume he was speaking for the administration. As such his statement could be taken as an abrogation of due process. This removes the veil of faculty oversight of student discipline, and there is simmering resentment that this power was taken from faculty by the Board of Trustees. Any unilateral administrative establishment of discipline on an issue that revolves around speech is a hornets nest that is best left un-kicked. We do understand that it may sometimes be necessary to “read the riot act” to students to notify them (or others) that continued assembly will be dealt with under the student conduct code.

My recommendation would be to have Tobin clarify his remarks and to state publicly that the university has no plans to charge any of the students in the protest with any conduct violation. Were actual conduct charges to be brought, I do not think you would have the support of the majority of the faculty nor students, and I think the Senate would react in a manner which you would find unproductive. A couple senators have already threatened a resolution to be introduced next Wednesday; we have a busy agenda that day and I would prefer to stay on task.

As you know, I have invited [the UO student collective] to come to the Senate for a brief 5-minute presentation followed by a 5-minute question and answer period. [The UO student collective] has not responded yet. In conversation with faculty, more individuals agree that this is the correct course of action for the Senate than agree with you that this is rewarding bad behavior. I will not argue that we are not rewarding bad behavior, because I see your point, but I think more people are moved by the argument that these students have fewer avenues to air their grievances than you or I, and that this was a legitimate protest.

I have been reflecting on my formal invitation of this student group to the next Senate meeting. Had I a do-over, I would take the advice of Frances White and merely indicate to this group that the Senate is a public forum on campus and that any group of students should be able to get on the agenda (with instructions on how to do so). This would allow the students an avenue for a public conversation without officially sanctioning it. I am unwilling to rescind my invitation to the student group, but I will hold onto this lesson for future use.

Thanks for considering my recommendations and for helping find a productive way out of this tricky situation,

Chris Sinclair, Assoc. Prof. Math, Senate President University of Oregon

Meanwhile, on the same day as the protest, the administration updated its website on Time, Place and Manner restrictions on free speech. They are calling these guidelines and procedures, not policies, because they agreed last year not to implement them as a policy, after the Senate raised numerous objections.

Until 2014, the UO Faculty had responsibility for the Student Conduct code. The Board of Trustees took that away from us as part of their Delegation of Authority, helped out by the faculty board member Susan Gary (Law) who failed to notify the faculty about the power-grab.

The new student conduct code even allows the administration to modify the  procedures retroactively, and apply them to existing student discipline cases:

All revisions to Student Conduct Code procedures, including but not limited to jurisdictional revisions, shall apply retroactively to pending Student Conduct complaints, filed on or after September 11, 2014

10/12/2017 update: Student Conduct Judge Tobin Klinger finds protest violated conduct code

Just kidding. Tobin Klinger is UO’s chief PR flack, not a Student Conduct Judge. He is not responsible for enforcing the student conduct code, nor has anyone at UO conducted any sort of investigation as to whether or not the student conduct code was violated, or whether any such violation was significant enough to supersede the UO policies on freedom of speech and academic freedom.

So what in the world was Klinger doing, in his official capacity as UO spokesperson, telling an Oregonian reporter 5 minutes after the administration suspended President Schill’s speech, that

“.. the demonstration actually violated university policy…”

Speaking in my private capacity as a blogger, I think the administration can make a plausible case that it did violate the code (and the Freedom of Inquiry and Speech policy). If that case succeeds they can then discipline the students accordingly.

But that case is going to be harder to make given this official statement from Klinger, which the students can argue is prejudicial.

10/9/2017 update: Small, ineffective, and reflects poorly on the student body

The Oregon Daily Emerald editorial board rarely posts editorials. They have written a good one on Friday’s protest:

Continue reading

Presidents and provosts gather in their safe-space to talk free speech

Apparently the organizer of the event, Chicago Provost Daniel Diermeier, thought the administrators wouldn’t come or wouldn’t speak freely if they thought their comments would be public. Insider Higher Ed has the report here:

… Just last week, students shouted down talks at Columbia University and the University of Michigan. Those doing the shouting down were generally students aligned with the political left, but supporters of President Trump also shut down a talk at Whittier College by California’s attorney general, Xavier Becerra, shouting “America First” and “build that wall” to prevent him from answering questions. And those events followed the interruption of speakers (sometimes preventing events from taking place at all) at the College of William & Mary, Texas Southern University, the University of Oregon and Virginia Tech.

With these events becoming increasingly common, the University of Chicago invited presidents and provosts from a range of institutions to come to campus this weekend for a closed-door discussion of how higher education should respond. The University of Chicago has stated in a series of statements from its leaders and monographs on its history that free expression must be respected on campuses, no matter how controversial the idea being expressed. …

Meanwhile Daily Emerald has an op-ed here, from journalism student Chayne Thomas, arguing for the free speech rights of the students who disrupted President Schill’s State of the University speech:

University of Oregon President Michael Schill was quick to dismiss the protesters of his Oct. 6 State of the University Address on the grounds that “they don’t understand the value of free speech.” While I believe he may be well-meaning in his desire to “teach all of our students and members of the community the value of free speech and tolerance,” Schill fails to acknowledge the defect in his fundamental misunderstanding regarding freedom of speech. Namely, he ignores the fact that speech is tied to access. It is strange that Schill, who has the loudest voice on campus and multiple platforms at his disposal, can claim that his rights and freedoms are being infringed upon, while other’s voices are being silenced.

Marginalized students don’t have a voice on campus, but Schill was able to post a statement on the school website, release a video and directly email all students regarding his speech. He also swung private conversations where $50 million suddenly appeared out of mid-air — conversations that didn’t include student voices. Students don’t typically have access to platforms and forums for speech sanctioned by the university, and this needs to change. …

This is a counter to the Emerald editorial arguing against the protesters:

… Friday’s protest painted the UO student body as unwilling to listen to the viewpoints of others. College students around the country have been criticized recently for shutting down the speeches of controversial right-wing figures such as Milo Yiannopoulos and Ben Shapiro.

What happened Friday was worse. Schill wasn’t there to spew hate-filled rhetoric – he was a university president doing his job.

The organizers, whose gripes include Schill’s “acceptance of fascism and neo-Nazis,” “insurmountable increases to student tuition,” and “ignorantly happy-go-lucky attitude” wrote in their Facebook group for the event that “radical change requires radical action.”

We got the radical action. Still waiting on the radical change.

The organizers failed to suppress anything, as UO released a pre-recorded version of the speech minutes after its cancellation. Instead, the event made headlines for its spectacle and painted the student body as rude, unfocused and angry about … just about everything.

Students who are unhappy with school administration should absolutely protest and make their concerns heard.  The repeated tuition increases are a legitimate gripe, and Schill comes across as tone deaf when he tells students to ask their parents for money or take on more debt. But shouting him off the stage isn’t the way to address those concerns.

The Black Student Task Force has shown that respectful protest can effect change on this campus. Not all of their demands have been met, but they got things done by showing a willingness to work with administration rather than drown it out.

[UOM: After Missouri the administration was terrified by the potential impact of a black student protest that included Black student-athletes. The administration was desperate to work with them.]

For change to happen, there must be dialogue with those in charge of making the changes. Suppressing the speech of others is not how to move forward.

For on the protest and the prejudicial response from UO spokesperson Tobin Klinger see the “free speech” tag.

 

MLK Jr’s life and words demonstrated the importance of free speech far beyond the power of that racist little pissant Jeff Sessions to add or subtract

Call me a cynic, but it’s as if Trump’s AG Jeff Sessions is trying his best to destroy support for free speech among college students. That can’t be his goal, can it? What evidence is there, other than his lifetime of efforts to deny people their voting rights?

The NYT on Trump’s AG Sessions speech on campus free speech, here:

Speaking at Georgetown University’s law school, Mr. Sessions condemned the designated free-speech zones that have popped up on campuses across the country and seized on the case of an evangelical Christian student who had been restricted from speaking about his religion. He also sided with provocative writers who have been shut out at the University of California, Berkeley, which has been at the center of the debate.

“A national recommitment to free speech on campus and to ensuring First Amendment rights is long overdue,” Mr. Sessions said, addressing an audience that included students wearing tape over their mouths in protest of the Trump administration. “Protesters are now routinely shutting down speeches and debates across the country in an effort to silence voices that insufficiently conform with their views.”

Here’s Coretta Scott King on Jeff Sessions 30 years ago, when he was trying unsuccessfully to become a federal judge, outing him for his efforts to deny voting rights to citizens of Alabama:

And here’s Martin Luther King’s last speech – on the importance of the First Amendment for what he was able to accomplish for America. He died for it the next day:

Duck PR flack Dave Williford retires, UO reporter Kenny Jacoby wins prize

5/3/2017: Emerald reporter Kenny Jacoby’s stories about the arrests of UO’s student athletes for various assaults got him an award for investigative reporting.

UO got even more bad national press when the story came out about how Duck football flack Dave Williford had tried to take away Jacoby’s press pass over his reporting.

Now the Ducks are announcing that Williford will be retiring on June 30th.

Jacoby will be back as Emerald Sports Editor in the fall.

11/20/2017: Duck PR flack Dave Williford threatens to revoke student-reporter’s press pass

The reporter’s special crime? Publishing this story on alleged assaults by Duck athletes, including a locker-room fight that left a teammate with a concussion and an alleged attempt to strangle his girlfriend, and an alleged attack by another player that left an alumnus with a broken arm. The interview with the Daily Emerald’s Kenny Jacoby by the Oregonian’s John Canzano is here:

… Kenny Jacoby, the sports editor of the Emerald, joined me on the radio show on Friday to download on the story, and how his team’s access was threatened by the University of Oregon athletic department after the student newspaper contacted a key player involved directly. (UO failed/refused to coordinate an interview request so the students say they reached out themselves).

“We were actually called into the athletic department office and we were told if we do that again we were going to get our credential pulled,” Jacoby said. …

I know of one other Duck reporter who was also told to toe the line on reporting or have their access revoked. I know many former Emerald reporters read this blog, and if any of you have similar stories please email me at uomatters at gmail.

Williford is the same duck flack who took it upon himself to masquerade as a *UO* spokesperson in attacking the statistics used in UO economist Glen Waddell’s paper on football and bad grades, as reported in the NYTimes.

UO makes national top 10 list for free speech!

Unfortunately it’s the list of the top 10 *worst* universities for free speech. The Oregonian’s Andrew Theen has the report here. The FIRE list is here.

I am quoted by Theen as arguing that top 10 is a bit unfair, given President Schill’s recent decision to drop the proposed restrictions on the time, place, and manner of free speech:

… Harbaugh did credit UO President Michael Schill for one recent policy move that is a win for free speech on campus: stepping away from a controversial proposal to restrict speech under certain time, place and manner restrictions. …

As universities try to restrict free-speech, state legislators try to protect it

The UO administration finally gave the UO Senate a copy of their proposal to restrict free speech, here, and the Senate is now working on a less restrictive policy.  The Chronicle has a new report on the state legislation here (gated if off campus). An excerpt:

… So far, all of the lawmakers who have introduced such legislation have been Republicans. President Trump himself expressed anger this month, when violent protesters shut down an appearance by Mr. Yiannopoulos, a Breitbart editor, at the University of California at Berkeley.

In Virginia, however, Democratic members of that state’s House of Delegates played a substantial part in its passage this month of a bill briefly declaring that no public college there can abridge the freedom of anyone — including students, faculty members, employees, and invited guests — to speak on its campus.

Even before the 2016 presidential election made clear that the nation had become exceedingly polarized, some state legislatures had been moving to protect the speech rights of public-colleges students, mainly by barring such institutions from maintaining limited “free-speech zones” or by adopting new protections for student journalists.

The divisiveness that the election and its aftermath have brought to campuses, as well as recent uproars on campuses over certain speakers, appear to have heightened awareness of such speakers’ vulnerability to what is widely known as “the heckler’s veto” — protest disruptive enough to keep them from being heard.

The measure that North Carolina’s lieutenant governor has proposed is based heavily on model legislation devised by the Goldwater Institute, a conservative think tank in Arizona, and by Stanley Kurtz, a senior fellow at the right-leaning Ethics and Public Policy Center, in Washington, D.C.

Likewise, the Tennessee bill contains a provision calling for public colleges to punish people who interfere with the free-speech rights of others. The bill also has language providing that students may sue colleges that violate their speech rights for injunctive relief, attorney fees, and court costs.

A measure passed 65 to 25 by North Dakota’s House of Representatives, and now pending before that state’s Senate, takes a different, and somewhat softer, tack. It would require the State Board of Higher Education, which governs the North Dakota University System, to adopt a policy that prohibits public colleges from restricting speech, punishing students for free expression, or shielding students “from constitutionally protected expression merely because it is considered unwelcome, disagreeable, or offensive.” …

University presidents act to protect hate speech

FIRE has the report here:

At the University of Maryland (UMD), President Wallace Loh issued a statement yesterday in response to a set of 64 demands from ProtectUMD, a coalition of 25 student groups. The demands, issued in late November, include calls for punishing speech protected by the First Amendment. Specifically, the coalition demands an “[i]mmediate response to hate speech or actions from the University including a consequence (e.g. mark on transcript, potential suspension).” Tellingly, “hate speech” is left undefined.

The University of Maryland has an obligation under federal law to respond to discriminatory harassment, which is unprotected by the First Amendment, as is speech that constitutes incitement or a true threat. But there is no First Amendment exception for “hate speech,” an inherently subjective concept that has no legal definition; one person’s “hate speech” is another’s political manifesto. The vast majority of speech that some or even most might consider “hate speech” is protected by the First Amendment, and for good reason. ProtectUMD’s call for punishing “hate speech” runs headlong into UMD’s legal and moral obligation as a public institution to uphold the First Amendment.

In response, President Loh’s statement—titled “True to Our Values”—explains why freedom of expression must remain at the core of the university’s commitments. While acknowledging “the rise of angst, hurt, and anger in fraught times,” President Loh writes that UMD community members “cannot learn, teach, pursue truth, and advance knowledge without academic freedom and freedom of expression, civility and respect, diversity and inclusion, openness and shared governance.” Instead of censorship, President Loh embraces the challenge of free speech and its necessity for our democracy:

No anodyne will heal the divisions in our country today, nor should it. At the University of Maryland, we do not fear the clash of ideas and values. I ask every member of our academic community to help us move forward with an open mind, consider different perspectives, and debate with respect and civility. These are the qualities that make trust, collaboration, and progress possible in a democracy.

…  University of California, Berkeley

Meanwhile, 2,800 miles to the west, UC Berkeley Chancellor Nicholas Dirks also recognized the necessity of free speech in a statement to the campus community. Chancellor Dirks’ letter was prompted by an upcoming visit from Breitbart editor Milo Yiannopoulos, planned for next Wednesday and sponsored by the Berkeley College Republicans. Responding to calls for censorship and disinvitation, Chancellor Dirks wrote:

Since the announcement of Mr. Yiannopoulos’s visit, we have received many requests that we ban him from campus and cancel the event. Although we have responded to these requests directly, we would like to explain to the entire campus community why the event will be held as planned. First, from a legal perspective, the U.S. Constitution prohibits UC Berkeley, as a public institution, from banning expression based on its content or viewpoints, even when those viewpoints are hateful or discriminatory.

Duck threats to revoke student-reporter press passes are not normal

Sports Illustrated’s Richard Deitsch recruited a panel of 12 student newspaper sports editors, including the Daily Emerald’s Kenny Jacoby, to ask a few questions about covering big-time college sports. Here:

screen-shot-2016-12-11-at-6-24-00-pm

Q: Has a school administrator/athletic department official ever threatened to take away your credentials? If yes, please describe in detail what happened

Allentuck: No …

Andrews: No. …

Ashame: No.

Baumann: … never …

Caplan: No …

Carroll: No …

Hummer: … never happened …

Jacoby: Yes — it’s happened to at least three sports editors at the Daily Emerald in the past four years, including myself. During our reporting of the Pharaoh Brown story this year, I directly called the football player whom Brown concussed, rather than requesting an interview with him through the athletic communications office. I had previously interviewed him within the athletic department’s interview guidelines, but one of the sports information directors was standing nearby during the interview, so I wanted to give the player a fair chance for final comment. After I called the player, the SID called me into his office. He said in his mind there were no exceptions to Oregon’s interview policy, and if the Daily Emerald continued to break protocol then the only recourse would be limiting our access. He said he was ready to pull our credential to the Civil War game on Nov. 26 but would let it slide one time with the expectation that it wouldn’t happen again.

The university senate caught wind of the athletic department’s threat to revoke our credential. It requested the UO’s general counsel to investigate whether the athletic department’s interview policy and threat against the Daily Emerald were in violation of UO’s polices on freedom of inquiry and free speech, and on academic freedom. The latter policy states, “members of the university community have the right to investigate and discuss matters, including those that are controversial, inside and outside of class, without fear of institutional restraint.” The president of UO agreed to let the general counsel investigate the potential free speech violations; that investigation is ongoing.

Polglaze: … never happened …

More on the UO Senate website here.

General Counsel will investigate Pintens’s restrictions on athletes’ free speech

Max Thornberry has the news here:

“The matter is not one within the purview of the Senate, but President Schill always welcomes the advice and helpful assistance of the Senate Chair and Vice Chair,” Tobin Klinger, university communications officer said in an email to the Emerald. “He has asked the General Counsel of the university to look into the matter and inform him about what happened and whether what happened was consistent with university policies and procedures.”

Always happy to help, but “not one within the purview of the Senate?” Really? We take umbrage, Lord Tobin.

Assoc Athletic Director for Communications charged with assaulting reporter

for violating team rules about interviewing athletes.

screen-shot-2016-11-21-at-11-26-01-pm

That would be at Baylor:

Police charged Heath Nielsen, Baylor’s associate athletic director for communications, after James McBride, a reporter from the Keller, Texas-based Texas Blaze News, told police Nielsen assaulted him Nov. 5 after the Bears’ 62-22 loss to TCU in Waco, Texas. According to Waco TV station KWTX, McBride said he was attempting to take a photograph with a Baylor football player when Nielsen grabbed him by the throat and pushed him away, saying McBride was breaking the school’s rules against conducting interviews on the field after games.

Nielsen, who was placed on the leave of absence shortly after the alleged incident, was arrested Nov. 8.

But the Ducks are doing their best on the subject of assaults and reporters.

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Dave Williford. (GoDucks photo)

While Duck Associate Athletic Director for Communications Dave Williford hasn’t been arrested for trying to strangle a reporter, he did threaten to yank a student-reporter’s press pass for reporting on a series of alleged assaults and an alleged strangulation by Duck football players:

Kenny Jacoby, the sports editor of the Emerald, joined me on the radio show on Friday to download on the story, and how his team’s access was threatened by the University of Oregon athletic department after the student newspaper contacted a key player involved directly. (UO failed/refused to coordinate an interview request so the students say they reached out themselves).

“We were actually called into the athletic department office and we were told if we do that again we were going to get our credential pulled,” Jacoby said.

Coach Mick Helfrich let the player accused of breaking an alumnus’s arm play on Saturday, and he caught the game winning pass, probably saving Helfrich’s $3.5M job for another year or two.

Student condemns the administration’s proposed free speech TPM restrictions

Jennifer Gomez (Psychology), has an excellent op-ed in the RG today. Read it all, here’s an excerpt:

… Over the years, I have witnessed and participated in protests and marches, and I have watched the UO change. I have watched victims of sexual violence publicly find their voices. I have watched undergrads, graduate students, staff and faculty come together to publicly shed light on a glossed-over truth: the UO had two campus buildings named after white supremacists.

From the campus community’s grit, passion, perseverance and fights for social justice, the UO has changed. In doing so, it makes me proud to be a Duck.

Now, living out of state, I was shocked when I came across this new proposed policy ( http://rgne.ws/2goQlof ): “Time, Place, and Manner of Free Speech.” In rationalizing the need for this policy, President Michael Schill commends the UO as a leader in “the protection of free expression,” citing the UO policy, “Freedom of Inquiry and Free Speech” ( http://rgne.ws/2g1nIIO ).

President Schill goes on to describe members of the UO as a community — even a family — that can learn from each other through honest and respectful discussion. I agree with freedom of expression; I also agree with respect of others. What I cannot seem to understand is how freedom of expression and respect translate into dictation of excessive limitations to free speech.

Limitations that would bar protests inside or in front of Johnson Hall: the site of the highest level administrators on campus; and unsurprisingly, the site of many protests as well. …

Read the draft of the policy yourself. My interpretation is that if it were in place now it would have allowed – and perhaps even required – the administration to arrest the South Eugene High School students who marched down 13th street in front of Johnson Hall to protest Trump’s election:

(4)            While the streets and sidewalks of the campus are generally open to speech activities by University Entities, the Vice President for Finance and Administration may designate portions of a street and the time of day during which a street is not available for speech activities by any person or group, in order to meet traffic, emergency access, and public transit needs.   Any such restriction shall be content- and viewpoint-neutral basis. 

and

ENFORCEMENT

(1)            Any person violating these rules is subject to:

(a)             Institutional disciplinary proceedings, if a student or employee; and

(b)            An order to leave the immediate premises or property owned or controlled by the University by a person in charge of University property.

(2)            Persons failing to comply with an order by a person in charge to leave or to remain off the immediate premises or property owned or controlled by the University may be subject to citation or arrest for criminal trespass.

(3)            The Vice President of Finance and Administration, Vice President for Student Life, the Dean of Students, and their designees, have the authority of “persons in charge” of University property for purposes of these rules.

President Schill on Free Expression on Campus – Rights and Some Responsibilities

10/29/2016: The Daily Emerald now has a brief report by Desiree Bergstrom: “UO plans to tighten protest policy”

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10/28/2016: Now posted on the Senate blog here, along with a draft of the administration’s proposed “Time Place and Manner” restrictions on free-speech and expressive activities. Please post your comments there.

Colleagues,

Over the past year, controversies involving free expression have cropped up on campuses throughout the United States. Speakers have been disinvited at several universities as a result of objections to their views. At other universities, speakers arrived on campus only to be shouted down by their audiences. A student was disciplined at one college for making a joke about feminism; at another a similar fate met students who criticized the university’s affirmative action program. And at many universities, students demanded administrative sanctions against other students for their expressions of political views.

The University of Oregon has a proud history as a leader in the protection of free expression. In 1963, the university created a free speech platform outside the EMU. A few years later, during the height of Vietnam War protests, the university created new procedures that recognized the rights of students to protest and drafted policies that took a lenient approach to nonviolent demonstrations. In 1986, the free speech zone was expanded to the plaza outside our student union. Wayne Morse—our former law professor, dean, and US senator—was throughout his career an outspoken advocate for unpopular political positions.

Today, members of our community still use demonstrations to drive attention to their causes, including in just the past year marches organized by the Black Student Task Force, the Divest UO movement, and our own classified workers. Like other UO presidents, I have sometimes been mentioned less than lovingly during these protests. But like the majority of my predecessors, I am also deeply committed to the principle of free expression, both as embodied in the First Amendment and in the institution’s tradition of academic freedom.

Let me ground this conversation in the unequivocal statement that the UO embraces free expression as one of its core principles. It is outlined in the policy on Freedom of Inquiry and Free Speech passed by the University Senate in 2010 and signed by President Richard Lariviere. The policy states the following:

“Free inquiry and free speech are the cornerstones of an academic institution to the creation and transfer of knowledge. Expression of diverse points of view is of the highest importance, not solely for those who present and defend some view but for those who would hear, disagree, and pass judgment on those views. The belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive, or ‘just wrong’ cannot be grounds for its suppression.”

My own views on free expression are entirely consistent with this strong statement of principle. As the inscription at the EMU Free Speech Plaza states, “Every new opinion, at its starting, is precisely in a minority of one.” Today’s unpopular sentiment or theory may become tomorrow’s orthodoxy. Perhaps even more important, unpopular views, even those that never catch on, cause us to question our commonly held presuppositions and engage in critical thinking, which is at the core of what we teach at a great university.
Of course, free speech is not and never has been an absolute right. Chief Justice Oliver Wendell Holmes said it best when stating that the law does not sanction someone “falsely shouting ‘fire’ in a theater.” Courts have determined that it is appropriate and necessary for government to define the time, place, and manner in which speech may coexist with the functions of government. In a university setting, we create restrictions that protect the safety of our community, the rights of our students to obtain an education, and the ability of our faculty, staff, and administrators to do their jobs effectively.
Last year, a group of students representing Divest UO occupied the waiting room of Johnson Hall and attempted to plant a sign in front of the main door for more than a month. They were respectful, interesting, and fun to engage in conversation. To be honest, I sort of liked having them there, even though they refused my offers of food. On the other hand, they disrupted business at Johnson Hall. When we looked for policies pertaining to the sit-in, we found that we had little more than vague rules prohibiting disruption and allowing for scheduling the use of facilities.

The absence of appropriate and well-understood rules for the use of campus spaces for the free exchange of ideas makes us all vulnerable. We don’t have a set of consistent policies and rules that are clear to students, members of the faculty and staff, or other entities who may wish to appropriately protest. More important, the absence of clearly articulated policies means that there is an unacceptable risk of arbitrariness and ad hoc rulemaking that in itself is a threat to the UO’s foundational free speech principles. While I liked the students sitting in the foyer, what if they had been hateful people advocating for policies we find reprehensible? Restrictions on speech—even those allowed by law—must be content-neutral.

To deal with this problem, I have asked our Office of General Counsel to draw up a proposal that sets forth a clear set of guidelines to govern the time, place, and manner of expressive activity on campus. They are in the process of getting feedback from stakeholders across campus and plan to take that proposal to the Policy Advisory Committee in the next few weeks. It is my hope that this process of circulating a proposal will allow us to craft the best policy possible, one that reflects the values of the community and serves the legitimate needs of the university. I view it as the beginning of a campus dialogue that will involve all constituents of our university including our students, classified workers, administrators, faculty, and University Senate. Because of the vulnerability I described in the previous paragraph, if for some reason we are unable to come to a consensus in four months, then I will enact a temporary policy until that consensus is achieved.

The final topic that I would like to cover is how we treat each other. At our September convocation, I spoke to more than 3,000 incoming members of the Class of 2020. I told them that sometimes professors or classmates might say things that angered or even offended them. But the antidote to speech that one doesn’t like is not to shut down that speech. That is what totalitarian governments do. Instead—to paraphrase Supreme Court Justice Louis D. Brandeis—the antidote to speech we don’t like is more speech. I am delighted that we have not experienced the type of intolerant behavior that has taken place at many other universities in the 15 months since I assumed the presidency of the University of Oregon.

The fact that we have the right to say what it is on our mind, of course, doesn’t mean that we shouldn’t think about the effects of our words on others. Racist or sexist speech, hate speech, is not welcome on this campus. Students, faculty and staff members must all remember that we are a family—a family of Ducks. That means something. We should not harm members of our community by making them feel bad or unwelcome. As a community of scholars, we can debate ideas and theories without insulting each other or resorting to name-calling. Think about how your speech affects the people who hear it. And if you say something, even inadvertently, that does create offense, consider apologizing or engaging that person in a discussion. That’s what people in a family do. That’s also how we learn from each other—through discussion.

This message—that there is nothing inconsistent between the notions of protecting free speech and being careful that our speech doesn’t harm members of our community—is one that we should all put into practice. Not because the university’s administration will step in to squelch the speech with disciplinary proceedings. We won’t do that unless it rises to the level of pervasive harassment that deprives members of our community of their rights to teach or learn. We should consider the effect of our speech on others because we are a community of scholars.

So let’s argue with each other robustly over ideas and policies. Let’s protest against oppression; let’s argue about politics; let’s even debate about questionable decisions emanating from Johnson Hall. But let’s do so respectfully, assuming that each of us just wants to do the right thing. And let’s also keep open the possibility that all of this speech might convince us to change our minds. That is the essence of rational discourse; it is why our university was created and why we chose to be here.

Mike Schill, President

Office of the President, 1226 University of Oregon, Eugene OR 97403-1226

Campus free-speech advocates are dupes of a vast right-wing conspiracy

9/4/2016 update: Greg Lukianoff of The Foundation for Individual Rights in Education points out the fallacies in Jim Sleeper’s NYT op-ed:

Of course, this isn’t the only thing that Sleeper gets wrong. As he has done before, Sleeper attempts to present FIRE as part of a vast right-wing conspiracy, conveniently ignoring the incredible political diversity of our staff and the many, many cases in which we have fought for speakers and expression popular on the left, as well as speech that’s popular with practically no one at all. An honest reading of our case archives attests to this. As FIRE’s Will Creeley wrote just last month:

To be clear: FIRE defends student and faculty speech regardless of the viewpoint expressed or the speaker’s identity. If expression is protected by the First Amendment, FIRE defends it—period. That means we defend Democrats,Republicans, Libertarians, Democratic Socialists, and those affiliated with no party at all; Muslims, Jews, Christians, and atheists; environmental activists, animal rights activists, pro-choice activists, anti-rape activists, anti-war activists, and LGBT activists;free market advocates, pro-life activists, anti-immigration activists, and anti-affirmative action activists; student reporters, student government members, adjunct faculty, and tenured professors; and many, many more. FIRE even stands ready to protect the expressive rights of those who call for censorship, though we flatly disagree with those advocates’ goals.

Sleeper also pretends that we never wrote anything positive about protests at Yale. That’s not true, either.

Lukianoff has a point. Here at UO, FIRE even fought for the UO Divest students’ right to keep their Divest Now banner up outside Johnson Hall. I’m guessing that the Koch Brothers are not big CO2 divestment fans, but they are paying to help maintain our students’ right to argue publicly for it.

9/3/2016: The NYT has the scoop here. The author, a political scientist from Yale, is shocked to learn that Republicans are supporting free-speech. I wonder how many Republicans he has met while teaching at Yale?

For the record, UO’s free-speech and academic freedom policies, which are as strong as any in the country – far stronger than Chicago’s, for example – were written by an overwhelmingly liberal faculty. UO’s United Academics faculty union has defended free-speech and academic freedom from the University administration during each contract negotiation, with the help of the AAUP.

So this Yalie thinks the UO faculty, our union, and the AAUP are the Koch brother’s “useful idiots”? Sure.