Once Upon a Time, Place and Manner . . .

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by Leslie Beggs

Colleges and universities have been raking in the negative PR of late, and not just because the lousy job market has left grads and their parental units staggering under the huge college loan debt typically handed out with their diplomas.  There’s also growing evidence that while diplomas specify the recipient’s major subject area, too many students have picked up concurrent shadow degrees in the up-and-coming field of Intolerance, hence the rude trend of disinviting graduation guest speakers.

Apparently, higher education leaves them in such a fragile emotional state that they dare not risk hearing from anyone who doesn’t meet their 100% organically-certified ideological purity standards. This is no surprise given that the once lush groves of academe have withered down to mostly one species of left-leaning cacti – and a prickly one at that.  Academic freedom and free speech currently are about as welcome on campuses as a mink coat at a PETA convention.

We’ve experienced the new era of hyper-regulated speech up close and in person here at Modesto Junior College, where my husband has taught since 1991.  Last fall he spotted a video in which a college student is stopped by a campus security officer from passing out free booklets to passersby.  The freebie?  Copies of the U.S. Constitution.  The date?  September 17th, Constitution Day.  The video, now with over 240,000 views, is what is known in the PR world as “bad optics.”

As my husband peered closer at the ludicrous story – and believe me, it takes a lot to divert him from an online Scrabble battle — he recognized a familiar face.  “Hey – that’s my student!”  Rob Van Tuinen, following a six-year stint in the Army, had decided it would be a good idea to start a Young Americans for Liberty (YAL) Chapter on campus while pursuing his degree.

But Van Tuinen  quickly learned that he was not at liberty to promote a club celebrating our unique American liberties because he had violated MJC’s “Time, Place & Manner” Policy, which governs the conditions under which “free” speech enterprises may be allowed to occur on our campus.  Van Tuinen had not filled out the Limited Public Forum Request Form  five business days in advance, had not been granted permission, and worse still, was just standing willy-nilly on the sidewalk offering U.S. Constitutions to whoever walked by, instead of confining himself to the tiny “free speech” area, a concrete stage off the beaten path.  Fortunately, he was smart enough to operate his smartphone camera and capture his run-ins with MJC’s irony-impaired staff.

The "Free Speech" Stage

The “Free Speech” Stage

When national news media picked up his story, MJC deservedly found itself a magnet for ridicule and attempted damage control through its own social media:

. . . (YCCD) colleges have free speech areas on campus for activities such as distributing material on campus.  In addition, people can distribute material in the areas generally available to students and the community as long as they don’t “disrupt the orderly operation of the college.”  In the case of the YouTube video, it does not appear that the student was disrupting the orderly operation of the college.  Therefore, we are looking into the matter . . .“

~ MJC Facebook page, Sept. 19th, 2013

On Sept 22nd, President Jill Stearns took her case to the local newspaper, which paired her column next to one I had written on the same topic. She complained about the media coverage and regretted not MJC’s treatment of Van Tuinen, but the media’s treatment of MJC. Her lament that people who were calling to complain “have no interest in the fact that we carve out designated free speech areas” to minimize “disruption” only confirmed the suspicion that she still did not understand that there is nothing free about speech that must be approved by officialdom, granted an appointment, and then relegated to a tiny area.

By September 27th, Stearns took a more conciliatory tone in a press release.  However, MJC’s allegedly “comprehensive review” — which somehow did not include talking to Rob Van Tuinen – had found the usual go-to excuse whenever bad policies are caught behaving badly:  a misunderstanding:

We deeply regret this misunderstanding. College staff have been provided the policy and procedure for review and follow-up training is planned to further ensure that clear and accurate information is provided in the future.

~MJC President Jill Stearns, News Release, Sept 27th,2013

Note the subtle scapegoating of the staff – why else would they need follow-up training unless they had screwed up a perfectly fine free-speech policy1 by giving Van Tuinen confusing and inaccurate information? Her statement also noted that a formal apology had been sent to the student, so I asked Van Tuinen what he thought of it.  He hadn’t seen the press release and had heard nothing about an apology.2

Two days later, it arrived in his mailbox.  Sticking to the same narrative as the press release, Stearns did not apologize for MJC’s anti-First Amendment speech controls, but for “the lack of clear communication regarding distribution of materials on campus . . . “

Although Van Tuinen appreciated the apology, he wasn’t buying the “misunderstanding” narrative, probably because he had read the “Free Speech” Guidelines which Administrative Specialist Christine Serrano can be seen handing him in the video.  He knew that both the security officer who stopped him and Serrano had enforced the Guidelines exactly as written.  If anything, they could teach the follow-up training that Stearns had promised.

The non-profit Foundation for Individual Rights in Education (FIRE), which serves as a national watchdog protecting free speech rights on college campuses, wasn’t buying it either. FIRE’s Peter Bonilla had already sent a letter to President Stearns detailing the many sins committed against the First Amendment by MJC’s speech code.  He also offered absolution by volunteering to aid MJC in rewriting it – for free.   MJC’s leadership, however, wasn’t interested in free.  (FIRE tells me they have two people on staff who help colleges across the country right their speech code wrongs.)

Van Tuinen had little faith that MJC’s “ongoing” policy review process would actually go anywhere.  He decided to sue to get the speech rules changed to conform to the U.S. Constitution, which is, as he can be heard arguing in the video, “the highest law in the land” – as if that might matter.  With the help of FIRE, his attorneys filed suit twenty-four days after his initial run-in with MJC’s speech code enforcers.

Although he eventually prevailed in getting the Constitution-compliant policies he wanted, settling out of court in February, the continuing resistance of MJC’s leaders to admit they ever abridged Van Tuinen’s First Amendment freedoms is troubling . . . and a little weird.   Some would argue that because Stearns apologized and settled out of court, that whatever protestations MJC leaders made in the aftermath should be ignored. It’s over and done with.  But what is not known widely is that there were retaliatory measures taken against faculty who disputed the party-line – a story that hopefully can be told another day.*

But beyond those retaliations, the way MJC’s leaders tried to conceal how restrictive their speech code really was – using a carefully crafted brew of misleading talking points and legalese — ought to give pause to those who just want to move on. I can’t, because I love MJC and I hate what’s happened to it.  Three generations of my family have gone here: my father in the 50’s, I in the 70’s, my sons after me and a slew of other family members, some currently attending or working here.  Our college has many great teachers and staff, a world-class observatory and a lovely tree-laden campus.  But the events depicted in the video should never have happened – and the leaders who created the toxic micro-managing culture in which they did happen have yet to admit they erred in any way.

Instead, MJC has continued to argue that Van Tuinen could have passed out his materials beyond the free speech stage, since he wasn’t being “disruptive.”  During the initial weeks of attempted damage control, every statement mentioning those other permissible campus places for free speech used the exact same phrase:  “the areas generally available to students and the community.”  Sounds natural, right?

Mom, can I go out and play? 

Sure, honey, you can go out and play in the areas generally available to children and the neighborhood.

This quirk of repeated exact wording caught my attention, so I dug a little deeper into MJC’s Time, Place & Manner policy for the East Campus and found the fine print: “the area(s) generally available to students and the community is designated as the stage area Northeast section [sic] of the quad.”  The Guidelines likewise identify the “stage area northeast of the Quad” as the lone East Campus “area(s) generally available to students and the community.” They also specified that the distribution of printed matter “shall take place only within the area(s) generally available to students and the community,”  i.e., the stage.  Don’t even think about wandering around campus offering Constitutions to any passersby who might accept one – that would be anarchy.

So there you have it:  the free speech area and “the areas generally available to students and the community” are different names for the same place:  the concrete stage.  Every time MJC officials protested that in addition to the stage, which was unavailable, Van Tuinen could have also passed out free Constitutions from “the areas generally  . . . “  they were really saying that although he couldn’t use the stage on Constitution Day, he could have used the stage; likewise, although he was stopped from handing out Constitutions, MJC claims he wasn’t stopped.  This is the sort of mutually contradictory nonsense Captain Kirk would use to fry evil supercomputers in Star Trek.

If it was obvious to you that “the areas generally available  . . .” consisted of a smallish concrete stage, and nothing but this stage, please raise your hand.    If this doublespeak definition makes your head hurt, you are beginning to understand the Orwellian word games being played here.

Who gave the higher-ups at MJC the idea that the First Amendment ought to be house-trained, collared and stuck on a short leash to a concrete stage?  And where did they get the notion to use wording in such a deceptive way that they could appear to fully support expansive free speech rights while failing to mention that their own fine-print definition shrank it down to a few square feet of concrete on the east campus?

What the press release giveth, the fine print taketh away.

There was no misunderstanding here, and no “lack of clear communication,” between Van Tuinen and the employees who stopped him on Constitution Day, as Stearns claimed in her apologies.  It’s obvious that the security guard and Serrano knew the Guidelines and were well-versed in how to approach a rogue free-speecher.

No, what the YouTube video reveals is not poor communication about good policies, but accurate communication about bad policies.  That they were changed via Van Tuinen’s lawsuit is the good news.

The bad news is that the Constitution Day episode reveals that what we have here at MJC is not a failure to communicate, but a concerted effort by administration to miscommunicate.

Chancellor Joan Smith says that “MJC cherishes free speech and always will.” I’m thinking we should start digging through the 500 or so pages of policies and procedures to locate the fine-print definition of “cherish.”

~

*Go here to see more of the story in the video that FIRE released on June 25th, 2014 about Van Tuinen’s experience — Quarantining the Constitution: The Fight for Free Speech on a California Campus

Here’s a great article by Tim Cushing of TechDirt, discussing the all-campus email that Dr. Holly sent out in support of Rob Van Tuinen.

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1Dying to get a rough idea of how academic bureaucracies come to have their reams of rules and regs? Boards of Trustees set district policies – many of which are mandated by their parent bureaucracies at the state and federal levels: the state chancellor’s office, Ed. Codes, etc.   In this task, boards are often provided templates from the Community College League of California (CCLC), which informs trustees which provisions are legally required, and which are recommended.

Relevant constituency groups have their input, and then the chancellor submits the proposed policy to the board, which either leaves it as is or tinkers with it and then approves it after a second reading. The chancellor then creates the specific procedures which enact the policy.    The Guidelines given to students filling out the request form to use the free speech area, were yet another iteration of the Time, Place & Manner policy, and of mysterious parentage.

Revision of existing policies typically occurs when Ed. Code changes require alterations.  Ed. Code 76120 requires that colleges have some sort of Time, Place & Manner policy.  However, these policies are not, despite multiple attempts to the contrary, supposed to supersede the First Amendment and applicable case law.

2In none of MJC’s statements is Rob Van Tuinen mentioned by name, with the exception of the post-settlement Bee opinion piece by Smith.  He was always “the student” in “the incident.”  Another subtle way to tell him, besides not talking to him when investigating “the incident,” just how much he really matters . . .

It All Depends on What the Meaning of “Free” Is

Check out my opinion piece below that appeared in The Modesto Bee (September 22, 2013), on MJC’s Constitution Day fiasco. You can also read  MJC President Jill Stearns’ very different take on the incident.

The YouTube video of Rob Van Tuinen being prevented from passing out  free copies of the Constitution sparked a national news story, and hopefully, an ongoing debate about “the inherent contradiction of free-speech codes.”

It All Depends on What the Meaning of “Free” Is

 

Congress shall make no law abridging the freedom of speech, or of the press . . .

~from the 1st Amendment, U. S. Constitution

The Colleges of the District are non-public forums, except for those areas designated as ‘free speech areas’, which are limited public forums.  The Chancellor shall enact such administrative procedures as are necessary to reasonably regulate the time, place and manner of the exercise of free expression in the limited public forums.

~ Policy 3900, Time, Place & Manner,

YCCD Policies and Administrative Procedures

Modesto is once again in the national news, only this time it isn’t for topping the car-jacking list – it’s for a YouTube video showing MJC student Rob Van Tuinen being prevented from giving away free copies of the Constitution on Sept. 17th.  The irony of stopping him on the very holiday which celebrates the enumeration of our freedoms, including freedom of speech, apparently escaped both the security officer who intercepted Van Tuinen about ten minutes into his freebie giveaway, and administrator Christine Serrano, who took refuge in a binder of rules, clinging to her mantra of  “ . . . time, place and manner . . .”

Van Tuinen is the president of a new chapter of Young Americans for Liberty, an organization which claims on its website to be “the largest, most active, and fastest-growing pro-liberty organization on America’s college campuses.”

MJC seems rather less “pro-liberty.”  It requires those wishing to commit an act of free speech to fill out MJC’s “Limited Public Forum Request Form” and allow five business days for “processing.”  If permission is granted, then the student or group is given a particular date and time in which to transact their free speech “rights,” but only in a designated “free speech” zone, which Serrano described as “over there . . .  that little cement area.” Like the security officer, she patronizingly assured Van Tuinen that she wasn’t telling him he couldn’t –he just had to follow the guidelines.   Oh – and she’d need a copy of his I.D., too.

She suggested that Sept 20th and 27th were open.  Not surprising– both are Fridays, the one day when students can actually get a parking space close to campus because only a few classes meet.  That means Van Tuinen could hang out in the “cement area” and wave at the few students who come within view.

Finally Serrano asked Van Tuinan why he wanted to pass out copies that day.

“’Cause it’s Constitution Day.”

“Oh.”

MJC issued a statement saying that it’s investigating the incident, but admits that since it doesn’t appear as if the student was being disruptive, he ought to have been able to offer materials in any campus areas “generally available to students and the community.”  Furthermore, “The administration of the YCCD supports the peaceful distribution of the Constitution and other materials on campus, which is why our colleges support Constitution Day with activities each year.”  This is disingenuous at best – the law creating Constitution Day mandates that all educational institutions receiving federal dollars provide an educational program about the Constitution’s history, on the holiday.

YCCD Board member Anne DeMartini  sees the whole episode as  “extremely embarrassing.  I’m constantly struggling to get the college community to be more supportive of diversity of thought . . . we need to revisit this policy.”  She also explained that in the past the college has had to try to balance the desire to promote free speech with the desire to protect students from graphic photos of aborted fetuses, for instance.  “We have childcare on campus,” she pointed out, “and not all our students are over 18.”

I understand her concern, but the video illustrates the inherent contradiction of “free speech codes.” There is nothing free about them, although one wonders if Van Tuinen would have run into the same resistance if he’d stuck a free condom on every copy.  In this age of political correctness, campuses are often required by state law to have speech codes, and organizations like YAL have sprung up to expose them as unconstitutional, and as the video shows, often ridiculous.  The Constitution covers giving out not just Constitutions, but also obnoxious material given out by “troublemakers.”  Our founders apparently thought that we could take it – that arguments should be won or lost on their merits, and that we didn’t need to be protected from opinions that we might not like.

Unfortunately, MJC’s administration has given in to the bureaucratic tendency to micromanage the law-abiding.  One hopes that they will revisit the issue and come up with rules — along the lines of “not yelling fire in a crowded theater” — that actually are “reasonable,” a word used in MJC’s policy without apparent understanding of its meaning.

It’s sad that the video didn’t capture any authority figure who encountered Van Tuinen and had the good sense to say, “Hey, you’ve got a copy of the constitution there?  Can I have one?  Thanks.”

Beggs was one of the first two visiting editors, and blogs at http://www.chickcurmudgeon.wordpress.com