Fighting for free speech at private universities

Rensselaer Polytechnic Institute (RPI) is no Berkeley-on-the-Hudson: Nothing burned during a student protest outside an October black-tie fundraiser hosted by school President Shirley Ann Jackson. But the protest and the ensuing disciplinary charges against two students at the Troy, N.Y., school highlights the lack of constitutional accountability at private institutions, including Christian colleges.

Attempts by school administrators and protesters to shut down debates and shout down invited speakers on college campuses across the country in recent months illustrate the tenuous grasp too many have on First Amendment principles. Public university policies must adhere to the U.S. Constitution, but private colleges are bound only by the free speech guidelines they codify in their student handbooks.

“Free speech liberties don’t apply, by default, on a private campus,” Adam B. Steinbaugh with the Foundation for Individual Rights in Education (FIRE) told me. “The Constitution, including the First Amendment, only restricts acts by the government. So, private organizations, like private colleges, don’t have to abide by it.”

That leaves private university students at the mercy of their school’s faithful application of free speech policies, which they are “legally and morally obliged to keep,” Steinbaugh said. So how do students demonstrate their disagreement with an administration that controls the means for expressing dissent?

At RPI, students have been locked in a yearslong fight with administrators over control of the Student Union. That battle came to a head this year as administrators clamped down on demonstrations and students defied efforts to silence public debate.

Throughout the conflict, Steinbaugh claims RPI acted contrary to its own policies. That inconsistency could give students legal grounds for a lawsuit, Steinbaugh warned in a Nov. 13 letter to RPI admonishing the school for its indiscriminate application of free speech codes.

RPI staff allegedly removed signs students had posted—in accordance with handbook guidelines—to promote “Save the Union,” an unofficial student organization fighting the school’s takeover of the student-operated facility. And twice this semester administrators denied applications to hold a “peaceful demonstration,” claiming it would disrupt the school’s operations, Steinbaugh said in the letter.

Students held the rallies anyway. During the second protest, on Oct. 13, students circumvented a barricade erected by the school to create a barrier between demonstrators and the building housing the president’s fundraising event.

“Save the Union” members and FIRE said RPI administrators used campus security video and local TV news coverage of the protest to target students who spoke out during the demonstration. Michael Gardner and Bryan Johns face disciplinary charges filed on Nov. 8 for trespassing and “failure to comply.” Administrators also charged Gardner with “operating a business” on campus because he distributed a letter in support of “Save the Union,” according to Steinbaugh.

RPI officials have not responded to FIRE’s latest letter calling for reform.

Students at Christian colleges have faced similar attempts to silence dissent, especially at student newspapers that try to cover topics administrators would rather not have publicized. In those cases, as at RPI, publicity and public pressure often provides the only recourse. But if a university promises free speech, students should hold administrators accountable, Steinbaugh said.

“So, when we write to a private institution, we explain how their conduct departs from their promise of freedom of expression, using First Amendment legal rulings as guidance,” he told me. “So, while RPI is a private institute, it has promised its students freedom of expression, then balked when the students used that freedom to criticize the administration.”

Daniel McArthur and his wife Amy Associated Press/Photo by Peter Morrison

Flour, eggs, sugar, and faith

The Supreme Court of the United Kingdom announced Monday it will hear arguments in that nation’s own “gay cake” lawsuit in the city where the conflict began: Belfast, Northern Ireland. Five members of the high court’s 11-justice panel will hear the case, Lee v. Ashers Baking Company, on April 30, 2018.

The announcement comes one week before attorneys for Colorado baker Jack Phillips argue his case before the U.S. Supreme Court.

The bakers share a common story: Compelled by their Christian faith, they refused to create a specialty cake in support of same-sex marriage. Government agencies then filed civil complaints against Phillips and Daniel McArthur, general manager of his family’s Ashers Baking Company in Northern Ireland, charging them with violating nondiscrimination laws. (According to its website, the McArthur family’s baking company takes its name from the Bible: “Asher was a tribe of Israel who had many skilled bakers and created bread fit for a king.”)

The U.K. high court often travels outside its 30-seat London chambers to give citizens an opportunity to observe, first-hand, the court’s proceedings. Its empanelment at the Inns of Court Library at the Royal Courts of Justice, which can seat 100 people, will be the court’s first time to convene in Belfast. —B.P.

Daniel McArthur and his wife Amy Associated Press/Photo by Peter Morrison

Students OK to pray at board meetings

Students in a Texas school district can continue opening school board meetings with prayer after the U.S. Supreme Court on Monday let stand a lower court ruling declaring the practice did not violate the Establishment Clause of the First Amendment of the U.S. Constitution.

The American Humanist Society and a former Birdville Independent School District student challenged the practice as unconstitutional in a 2014 lawsuit against the district. But in March, the 5th U.S. Circuit Court of Appeals declared a school board meeting akin to a legislative body, drawing its ruling from the Supreme Court’s 2014 decision in Town of Greece v. Galloway. That case extended the “legislative-prayer exception” to town board meetings and, in this case, school board meetings.

A similar case contesting the Rowan County, N.C., Commissioners’ pre-meeting prayers also is headed to the Supreme Court. The commissioners voted in September to ask the Supreme Court to hear their appeal of the conflicting 4th Circuit decision declaring the practice unconstitutional. —B.P.

Rest in peace

The U.S. Supreme Court on Monday declined to hear a case challenging the Nebraska Funeral Picketing Law, which requires protesters stay at least 500 feet from any funeral.

State legislators drafted the law in 2006 as Westboro Baptist Church members crisscrossed the nation picketing the funerals of fallen service members with hate-filled signs declaring “God hates fags” and “Thank God for dead soldiers.” Under the Nebraska law, demonstrators must stay 500 feet from the building or graveside at least one hour before a service begins and two hours after its conclusion.

The father of one fallen soldier sued Westboro for damages after its members demonstrated at his son’s 2006 funeral in Maryland. He lost that case in an 8-1 Supreme Court decision in 2011. Seven months later, emboldened by that ruling, Westboro Baptist Church sued to end Nebraska’s law.

But a federal court judge in March ruled Westboro did not have an “absolute right” to free speech and the imposition of “time-place-manner” restrictions in Nebraska’s law met constitutional muster. The 8th U.S. Circuit Court of Appeals agreed, and the Supreme Court let that ruling stand. —B.P.