A faux legal memo

Note: This memo was created for my Legal Issues in Higher Education class. Pizzegenetics does not exist!

April 1, 2004

TO: Shaun Duncan, Vice President of Student Affairs

FROM: Eric Stoller, Assistant to the Vice President of Student Affairs

SUBJECT: Cacophony at Central City University

I. Introduction

The primary purpose of this memo is to provide a functional working paper regarding the recent incidents with the Pizzegenetics Department. We are currently involved with two potential legal issues. Opra Ochre, a CCU student is threatening to sue the university regarding her rights to free speech while Wendy Dae, a researcher for Pizzegenetics is involved in a multifaceted issue. Wendy Dae is threatening to sue Opra Ochre for assault and discriminatory harassment as well as CCU for failing to protect her rights to safely conduct research.

Last year, CCU received a $23 million, six-year grant which has led to the increased scrutiny of the Pizzegenetics Department. Various media outlets, community action groups, and student organizations have literally lobbied for the stoppage of the Pizzegenetics project. However, there have been plenty of positive outcomes for the Pizzegenetics researchers. Time magazine recently ran a feature on their odorless garlic.

The Pizzegenetics Department consists of three professors and nine post-doc research assistants. The Pizzegenetics Department building is located near the Center for Genetic Engineering.

As you are aware, CCU prides itself in its “intellectual and civilized approach to addressing diversity and difference.” The recent incidents at the Pizzegenetics building have been very disturbing and serve only to undermine our mission. It has seemed that there has been a gradual build up to the unfortunate incident that occurred on March 25, 2006.

Thus far, the following events have transpired with regards to the Pizzegenetics project and CCU:

  • Several editorials have been written in the Moderate Radical.
  • Small, most unorganized protests outside of the Pizzegenetics building.
  • Two campus approved evening vigils.
  • Leaflets have been taped on cars near the Pizzegenetics building. (Note: The newspaper editorials, protests, vigils, and leaflet distribution have all been sponsored by the “Protest PG” movement.)
  • The Pizzegenetics building was broken into and vandalized. Several pieces of computer equipment were damaged and Pizzegenetics personnel are reporting the theft of a number of genetically engineered plants from the department’s rooftop.
  • CCU student, Opra Ochre vandalized numerous Pizzegenetics bulletin boards.

Before the last protest, the “Protest PG” movement had followed university policies and procedures. On March 25, 2006, the “Protest PG” movement held a protest outside of the Pizzegenetics building. The protest involved about 150 students as well as a few CCU faculty. The protestors disrupted classes through the use of a loudspeaker. They also passed out flyers with the names, addresses, and photos of all of the Pizzegenetics faculty and research staff. In addition to the flyers, “Protest PG” members have also created a website listing the same Pizzegenetics staff information.

During the protest, four Pizzegenetics researchers attempted to quiet the protestors. The conversation soon became heated and a shoving match ensued. Opra Ochre doused one of the researchers, Wendy Dae, with a “large cup of hot coffee.” Opra Ochre then threatened to “get even more physical if we have to, to stop you foreigners and your criminal corporate partners!” Wendy Dae responded by calling Opra Ochre “…a thief, an extremist – racist, a dangerous criminal!” Witnesses reported to CCU Campus police that Wendy Dae threatened to hit Opra Ochre.

II. Policy/Educational/Administrative Issues and Questions

There are several key university policies that need to be reviewed in order to establish a consistent response and review to this situation. Policies currently under review are: Campus Harassment, CCU Assault Policy, Free Speech, Disruption of Services, Campus Events (which includes the use of audio equipment during class times), Student Conduct Regulations, Hate Crime Policy, and our Human Resources Employee/Employer Agreement Contract.

I have spoken with CCU Office of Student Life and they did not receive any requests for space usage by the “Protest PG” organization. Prior approval is necessary when a group is using audio which may be disruptive to the CCU community. Our time, place, and manner rules may be called into question.

I believe that what we do to create campus community and the work that we do towards assessing our campus climate will be crucial in maintaining alignment with CCU’s mission and values. The faculty senate, Office of Multicultural Affairs, Campus Police, and University Counseling Services are putting on several open forums this month. They plan on creating safe spaces for dialogue with the hopes that the “Protest PG” students voice their views in a civil atmosphere. I have met with the editors of the Moderate Radical and they plan on covering the forums. Their advisor has assured me of balanced coverage which we hope will assure that everyone’s voice is heard.

Several questions exist which we need to consider and/or act upon:

  • Threats: Pizzegenetics researchers have been threatened with further violence. What can we as a campus do to protect our campus community from more violence?
  • Learning: What types of educational opportunities exist in which we can educate our community about activism and the sanctity of academic research? What student development considerations should we think about as we progress through this process?
  • Lawsuits: What are the liability issues to consider for these recent events? How can we address both Wendy Dae’s and Opra Ochre’s legal concerns? On one hand we have a researcher who is not feeling safe on campus and on the other; we have a student who feels that her right to free speech is being prohibited.
  • Student Conduct: What are the appropriate student conduct regulations for addressing this situation? Have Ochre’s previous conduct offenses been adjudicated? Has free speech and public protests been discussed amongst the Student Conduct Committee?
  • Student Life: Is “Protest PG” a registered student organization? If so, have they in any way violated CCU student organization policies?
  • Campus Police: What was the CCU Campus Police response to the protest? Were they on site before or after violence (specifically, the alleged coffee assault) occurred? How many individuals were arrested? Who is the appropriate contact person for CCU Campus Police? Are they communicating with CCU Public Affairs?
  • Training: Pizzegenetics staff did not call CCU Campus Police when the protest started. What can we do to train CCU personnel that the first thing they need to do is to call the CCU Campus Police so that they are informed of all protests?
  • CCU Public Affairs: Is CCU Public Affairs aware of FERPA and the need to communicate with the Registrar’s Office prior to any official press communiqués?
  • Campus Mission: How can we continue to address this situation intellectually and with civility while at the same time realizing that we will have to agree to disagree?

There are several questions that we need to discuss with many campus entities.

III. Legal Issues

a. Case Law

To assist with our discussions and to provide us with a legal framework, I have collected several cases that I feel can ensure that we approach our actions within the boundaries of the law.

Discriminatory Harassment:

Doe v. University of Michigan, 721 F. Supp. 852, 864 (Dist. E.D. Mich, 1989)

In this case, the University of Michigan had an anti-discrimination policy that “prohibited individuals, under the penalty of sanctions, from ‘stigmatizing or victimizing’ individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status” ( Doe v. University of Michigan, 1989). The case focused on whether or not the policy violated the First Amendment. The courts found that “the Policy swept within its scope a significant amount of ‘verbal conduct’ or ‘verbal behavior’ which is unquestionably protected speech under the First Amendment” ( Doe v. University of Michigan, 1989). The Michigan policy was too overbroad and thus found to be unconstitutional.

The UWM Post v. Board of Regents of the University of Wisconsin, 774 F.Supp. 1163

(E.D. Wis. 1991)

The “UW Rule” held that “the university may discipline a student in non-academic matters in the following situations: For racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally:

1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and

2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity” (The UWM Post v. Board of Regents of the University of Wisconsin, 1991).

The courts determined that the policy or “UW Rule” regulated the content of speech, and was therefore unconstitutional. The policy was also considered overbroad.

Application:

Wendy Dae is threatening to sue Opra Ochre for discriminatory harassment. Our anti-discrimination policy will bear significant relevance if Dae sues Ochre. It has been proven that it is extremely difficult to regulate speech.

Freedom of Speech:

Tinker v. Des Moines School District, 393 U.S. 503 (1969)

The Des Moines School District suspended a group of students for protesting the Vietnam War. The students wore black arm bands which the school district’s no-armband policy. The students sued the school for violating their First Amendment rights. According to the U.S. Supreme Court:

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students (Tinker v. Des Moines School District, 1969).

Additionally, the court held that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” students (Tinker v. Des Moines School District, 1969). Students maintain their constitutional rights to free speech when they are on school property.

Healy v. James, 408 U.S. 169, 181 (1972)

This case focused on a university student organization and the organizations quest to become an officially recognized student organization. The case revolved around multiple issues, including: First Amendment protection and student organizations on state colleges and universities; time, place, and manner restrictions; and the difference between advocacy and action. Speech in the form of advocacy is entitled to full protection by the First Amendment while action is not.

The U.S. Supreme Court stated that “state colleges and universities are not enclaves immune from the sweep of the First Amendment” (Healy v. James, 1972). The Court found that it was unconstitutional for the university to stipulate that the students had to prove that they would not be a disruption to the campus. The burden of proof was instead placed on the university instead of the students, since placing the burden of proof upon the students was in effect a prior restraint on free speech.

Furthermore, the Court’s held that “while a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a ‘heavy burden’ rests on the college to demonstrate the appropriateness of that action” (Healy v. James, 1972).

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

This case dealt with “fighting words.” Fighting words are defined as words that are likely to cause a fight or to incite violence. Chaplinsky uttered several words that were determined to be fighting words, therefore they were unprotected. The First Amendment does not protect words which are “likely to cause a breach of the peace” (Chaplinsky v. New Hampshire, 1942). Words that are limited “include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” as well as words that have a “direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed” (Chaplinsky v. New Hampshire, 1942).

Application:

The protest that occurred contained numerous aspects of speech. Although content of speech is extremely difficult to regulate, we might be able to restrict speech on the basis that the speech caused a disturbance. Opra Ochre’s threats to sue based on the alleged restrictions on her free expression seem slightly baseless considering the fact that Ochre’s words could be labeled as fighting words.

Time, Place, and Manner:

Widmar v. Vincent, 454 U.S. 263, 268 n.5 (1981)

Relating to our current situation, this case involved the legal precedents of free speech within a public forum. A registered student organization was barred from conducting meetings in university facilities on the grounds that they were violating a university regulation which prohibited “the use of University buildings or grounds ‘for purposes of religious worship or religious teaching” (Widmar v. Vincent, 1981). The U.S. Supreme Court affirmed that a university could regulate speech with regards to location.

According to the U.S. Supreme Court:

A university differs in significant respects for public forums such as streets or parks or even municipal theaters. A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings (Widmar v. Vincent, 1981).

Auburn Alliance for Peace and Justice v. Martin, 684 F. Supp. 1072 (M.D. Ala. 1988)

In this case, students at Auburn University sued their institution for forbidding them to hold a week-long campout at Auburn’s designated public forum area. The students stated that this violated their constitutional rights. Auburn University had a policy which regulated speakers and demonstrations on the campus. The policy stated that:

Auburn University recognizes and supports the rights of students, employees of all categories, and visitors to speak and demonstrate in a lawful manner in designated areas of the campus. In order to maintain campus safety, security, and order, and to insure the orderly scheduling of facilities and to preclude conflicts with academic and co-curricular activities, Auburn University reserves the right to reasonably limit such activities by…regulations regarding the time, place, and manner of such activities (Auburn Alliance for Peace and Justice v. Martin, 1988).

The federal district court determined that Auburn had a legal right to reasonably limit speech activities concerning their time, place, and manner. According to the court, “few would suggest that a university would be forced to allow a speech or demonstration in the reading room of the library” Auburn Alliance for Peace and Justice v. Martin, 1988).

Ward v. Rock Against Racism 491 U.S. 781 (1989)

This is another time, place, and manner case. The U.S Supreme Court “affirmed that government has a substantial interest in regulating noise levels to prevent annoyance to persons in adjacent areas…” (Ward v. Rock Against Racism, 1989). The protestors utilized a loudspeaker which definitely disturbed the Pizzegenetics personnel.

Barker v. Hardway, 283 F. Supp. 228 (S.D. W. Va.), affirmed, 399 F. 2d 638 (4 thCir. 1968 )

In this case, higher education institutions can suspend students if they participate in a disruptive demonstration which deprives people of being able to go about their business.

Perry Education Assn. v. Perry Local Educators’ Assn, 460 U.S. 37, 45-46 (1983)

This case provides us with the consideration that activities which take place in a public forum receive “far more protection than expressive activities not undertaken in a public forum” (Kaplin & Lee, 1997, p. 360).

Buttney v. Smiley, 281 F. Supp. 280 (D. Colo. 1968)

This case provides information regarding the act of physically blocking entrances to campus buildings and preventing personnel or other students from using the buildings. I do not know if the protestors blocked the Pizzegenetics building but I believe that this could be pertinent pending the CCU Campus Police official report of the events that transpired.

Clark v. Community for Creative Non-violence, 468 U.S. 288 (1984)

This case provides us with further language as to how we define “reasonable.” Reasonable is defined as those restrictions on time, place, and manner that “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information” (Clark v. Community for Creative Non-violence, 1984).

Application:

Opra Ochre’s right to protest is supported by case law. However, the time, place, and manner of said protest is at the discretion of the university as shown by relevant court decisions.

Additionally, from Healy v. James (1972), “We . . . hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct."

Due Process:

Fellheimer v. Middlebury College, 869 F. Supp. 238, 244 (D. Vt. 1994)

College student conduct hearings are considered to be an administrative function of a university. This case affirmed that students are “not entitled to the same procedural due process that they could expect in a criminal proceeding” (as cited in Mawdsley, 2004, p. 7)

Additional Information:

In addition to the case law mentioned above, there are also laws at the federal, state, and institutional level that needs to be addressed and enforced. I am including a few of the most relevant laws.

Federal:

First Amendment of the U.S. Constitution

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The First Amendment also is important with regards to academic freedom. Thus, both Opra Ochre’s free speech concerns and Wendy Dae’s freedom to conduct research fall under the protections of the First Amendment.

State:

Oregon Constitution Article I Bill of Rights, Section 8. Freedom of speech and press

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right” (Oregon Constitution). The State of Oregon buttresses the First Amendment and increases its efficacy.

Statutes:

FERPA / Buckley Amendment, 34 C.F.R. §99.31 (9)

Please be aware that Opra Ochre’s student records can only be disclosed to officials who have a “judicial order or subpoena” (Kaplin & Lee, 1997, p. 27). This must occur in conjunction with a “reasonable effort to notify the parent or student before disclosure” (Kaplin & Lee, 1997, p. 27).

Oregon Administrative Rules:

Oregon Administrative Rule (OAR) 576-015-0015

(1) Obstruction or disruption of teaching.

(2) Obstruction or disruption interfering with freedom of movement

(4) Detention or physical abuse

(9) Inciting others to engage in any of the conduct (mentioned above)

These rules provide CCU with a safe learning environment. The use of a loudspeaker meets 1 and 9 of this rule. The protest and the alleged assault match up with 1, 2, 4, and 9.

Oregon Administrative Rule (OAR) 576-005-0005

These are the time, place, and manner rules for speech in the Oregon University System. Visit: http://arcweb.sos.state.or.us/rules/OARS_500/OAR_576/576_005.html for more information on Purpose and Scope; Definitions; Public areas; Access, traffic, and University Business Not to be Impeded; Notification; Use of Tables, Cart, Booths, and Similar Structures; Administrative Interpretation; Authorized Exceptions; and Enforcement. A copy of this as well as all of the OAR’s can be found in the CCU Office of Student Conduct.

Recommendations for Action:

Opra Ochre and the protestors violated multiple CCU regulations when they conducted their protest at the Pizzegenetics building. The Office of Student Conduct should plan on a lengthy adjudication process as numerous students were charged with offenses. The primary offenses focus around the violation of time, place, and manner restrictions.

Opra Ochre’s right to express herself is potentially nullified due to her use of “fighting words” and the aforementioned time, place, and manner guidelines. Opra violated CCU policies and several Oregon OAR’s, The Office of Student Conduct should move her hearing to the larger Student Conduct Committee since her offense is not as minor due to the coffee assault/”fighting words.”

I recommend that we form a campus coalition to immediately address the issues that I have addressed. The coalition should include: CCU Legal Counsel, the Dean of Student Affairs, Student Conduct, Campus Police, Campus Programs, CCU Student Life, CCU Student Government, CCU Counseling Services, Ombudsperson, Pizzegenetics administrators, and the Office of Access and Equity.

A discussion should occur with the “Protest PG” student organization. Their advisor should facilitate the scheduling of this meeting. It should potentially take place within the next 2 weeks. The conversation should be framed around our policies regarding student organizations, student rights and responsibilities, and the Oregon OAR’s.

Human Resources and the Office of Access and Equity should meet with Wendy Dae to discuss her potential suit. CCU Legal Counsel should be brought in on an as needed basis. Additionally, Wendy’s supervisor should be asked to join this meeting.

Conclusions, Implications, Questions:

I believe that it is in our best interest to set up a meeting with the CCU Office of Legal Counsel. This memo can provide us with a working document but it cannot take the place of legitimate legal scholarship. This situation has posed a significant challenge to our community. It is extremely important that we protect and advocate for the freedoms of our students, staff, and faculty. However, we must find a balance that is legally based that allows for free expression.

The increase in violent activity with regards to Pizzegenetics is very frustrating. The funding that they receive is a great boon to our overall budget and yet the research has caused a large amount of negative publicity and controversy. The community of Toppings has supported almost all CCU endeavors with the fervor of a booster club. However, it is crucial that we work with internal as well as external stakeholders to determine what can be done to create a better relationship for CCU, Toppings, and the Pizzegenetics project.

The potential for learning is great with a situation like this. Our students have shown a passion and a spirit for activism that has impressed most of our staff. However, we must works towards instilling a sense of accountability and responsibility amongst our students. After all, it is our goal and mission that they strive to become citizens of the world and it is our charge to help them with this lofty goal.

Security has been increased at the Pizzegenetics building and personnel have been instructed that they are to stay inside the building during protests. CCU Campus Police are installing security cameras in the building and are increasing their bike patrol presence.

Lastly, we need to strive to be as proactive as possible. The “Protest PG” student organization has stated that they are willing to dialogue with university officials and we need to make sure we take advantage of this opportunity to add value to their learning experience.

References

Kaplin, W.A. & Lee, B.A. (1997). A Legal Guide For Student Affairs Professionals. San Francisco: Jossey-Bass.

Mawdsley, R. D. (2004). Student rights, safety, and codes of conduct. Legal Issues in the Community College, (125), 5-15.

Table of Cases

Auburn Alliance for Peace and Justice v. Martin, 684 F. Supp. 1072 (M.D. Ala. 1988)

Barker v. Hardway , 283 F. Supp. 228 (S.D. W. Va.), affirmed, 399 F. 2d 638 (4 thCir. 1968)

Buttney v. Smiley, 281 F. Supp. 280 (D. Colo. 1968)

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Clark v. Community for Creative Non-violence , 468 U.S. 288 (1984)

Doe v. University of Michigan , 721 F. Supp. 852, 864 (Dist. E.D. Mich, 1989)

Fellheimer v. Middlebury College, 869 F. Supp. 238, 244 (D. Vt. 1994)

Healy v. James, 408 U.S. 169, 181 (1972)

Perry Education Assn. v. Perry Local Educators’ Assn, 460 U.S. 37, 45-46 (1983)

The UWM Post v. Board of Regents of the University of Wisconsin , 774 F.Supp. 1163 (E.D. Wis. 1991)

Tinker v. Des Moines School District , 393 U.S. 503 (1969)

Ward v. Rock Against Racism 491 U.S. 781 (1989)

Widmar v. Vincent , 454 U.S. 263, 268 n.5 (1981)

Federal Constitution

United States First Amendment

Oregon Constitution

Oregon constitution. (n.d.). Retrieved Apr. 01, 2006, from Oregon Constitution – Bill of Rights Web site: http://www.leg.state.or.us/orcons/orcons.html.

Statutes

FERPA / Buckley Amendment, 34 C.F.R. §99.31 (9)

Rules

Oregon Administrative Rule (OAR) 576-005-0005

Oregon Administrative Rule (OAR) 576-015-0015