Earlier this month I wrote about the Young Americans for Freedom group at Stony Brook University on Long Island that was denied equal access to student organization funding because it was deemed to be “too similar” to the College Republicans.  While some student groups at Stony Brook (including many with seemingly similar purposes on the left side of the ideological and political spectrum) are funded with tens of thousands of dollars in student fees, the non-partisan but conservative YAF was denied.

Now just three weeks after receiving our letter, Stony Brook has changed course.  The University Student Government has now advised YAF that on further review YAF is eligible for funding.  YAF is resubmitting its budget and should receive its funding shortly.  YAF members – who like all other students at Stony Brook pay the student fees that are used to fund student groups – will now be able to have their own group receive its share of their funds.  And as a result Stony Brook students of all views will now benefit from new policies protecting their First Amendment rights.

In addition to reversing its own decision to deny funding to YAF, Stony Brook’s Student Government also quickly enacted a new bill labeled, “An Act to restore sanity to the eligibility and funding of new student clubs.”  The new policy eliminates the “similarity” requirement under which YAF was originally denied funding.  The bill also eliminates a grossly unconstitutional policy requiring every new student group to provide a petition signed by 5% of the student body – roughly 800 students – supporting their funding.  The signers were also required to provide their phone numbers and ID numbers so that their identity and support for the group could be verified, an obvious burden on controversial and less popular views on campus.

Some issues still remain.  Stony Brook’s Department of Student Activities still reserves the authority to examine whether a group is “unique” (although it determined that YAF was) and some ambiguities remain concerning the actual criteria used to evaluate the budget proposals of student groups.

But as we continue to work with Stony Brook on these concerns, it is gratifying to see a University and student government work so quickly and diligently to right a wrong and bring their policies into compliance with the constitution without a court ever having to be involved.  I will wait patiently for the update to Stony Brook’s Wikipedia page listing this achievement alongside its inventions of the MRI and the virtual colonoscopy and the discovery of the Beelzebufo, a 10 pound ancient Madagascan frog.

This is a win not just for a very deserving group of passionate and dedicated YAF members at Stony Brook University, but for all Stony Brook students that value the First Amendment.

The deputy executive director of the Wisconsin Republican Party sought, under the state’s open records law, emails sent by University of Wisconsin-Madison professor William Cronon containing words such as “Republican,” “union,” and “Scott Walker.”  The request came in the wake of Professor Cronon’s public criticism of conservative advocacy groups, and was apparently predicated upon speculation that he had inappropriately used state resources for political advocacy.

Professor Cronon, the American Association of University Professors, and others have criticized the request as an assault on academic freedom.

Peter Wood, president of the National Association of Scholars, offers a thoughtful assessment of that charge, ultimately concluding that the Wisconsin GOP’s request deserves criticism, but is not a violation of academic freedom.  Worth a look.

New Jersey Senator Frank Lautenberg said at a Planned Parenthood rally that “[t]hey don’t deserve the freedoms in the Constitution.”  The “they” to whom he was referring were “Tea Party Republicans.”  Sen. Lautenberg added, “but we’ll give it to them anyway.”

Perhaps it is unfair to closely analyze an apparently off-the-cuff remark at an emotional political rally, but I still think it’s pretty disappointing that a sitting U.S. Senator would make such a statement.  That speech is free is central to the American ethos.  To be sure, there are complex situations around the margins, but Americans generally (and rightly) celebrate the core idea that speech is free, even if some, most, or all find it disagreeable.

More broadly, Sen. Lautenberg seems to have an odd view of constitutional freedoms.  Our possession of those freedoms is not earned or deserved.  In the words of the Declaration, it is a self-evident truth that we are endowed by our Creator with certain unalienable rights, including liberty.  I suppose it’s good that Sen. Lautenberg is willing to “give” his fellow citizens constitutional rights, even if they don’t “deserve” them; but he ought to understand that those rights aren’t his to give or take away.

Perhaps Sen. Lautenberg has simply been listening to the President, who sometimes fails to accurately quote the Declaration, omitting the “self-evident” truth that our fundamental freedoms have  a source.  Or, should I say, “a Source.”

Last year Casey started the tradition of completing an NCAA bracket based on how well the universities protected the constitutional rights of their students.  And Heather and Jeremy have continued this tradition by covering the Southeast and East Regionals, respectively.  Of course, Casey’s original rules still apply, though Jeremy’s new rule is—in the eyes of this Tarheel fan—a long overdue addition (even though Senator Jesse Helms once remarked—correctly—that if the Soviets ever invaded America, they would feel at home in Chapel Hill).  However, without further ado, here are the First Amendment picks for the Southwest Regional.

University of Kansas v. University of Richmond

In this matchup, the fact that the University of Richmond is private gives it an initial edge over the public University of Kansas.  But as Richmond is secular, this distinction hardly tips the First Amendment scales. 

Both schools earn FIRE’s red light rating.  For example, Richmond prohibits “inappropriate behavior or expression,” which is hardly a model of clarity and causes students to steer well clear of anything anyone might consider “inappropriate.”  And the speech code in its sexual harassment policy prohibits speech that might create a “hostile, intimidating, or offensive environment.”  While this language is hardly unique to Richmond, other harassment policies do not apply unless the speech is “sever[e] and/or persisten[t],” which mirrors the Supreme Court’s standard for harassment guidelines.  So its failure to include such language in its sexual harassment policy is a strike against the school’s First Amendment fortunes. 

Kansas features similar policies, including several that prohibit comments that create a “hostile, intimidating, or offensive environment.”  Its housing guidelines prohibit students from doing anything that “purposely humiliates another person” and from “making degrading comments.”  Such ambiguous, in-the-eye-of-the-beholder rules cover a wide spectrum of speech that the First Amendment protects. 

However, Richmond’s “Bias Incident Protocol” tips the balance in the Jayhawks’ favor.  At Richmond, anyone who thinks he might be subject to a “bias incident” can report it to the “Bias Response Team” for “support and guidance.”  And what is a “bias incident”?  Is it discrimination?  No.  Is it a crime? No.  Its definition has to be read in full to be appreciated:

[A]cts that do not appear to constitute a crime or actionable discrimination, but which may intimidate, mock, degrade, or threaten, individuals or groups and which one could reasonably conclude targets a member or group within the University community because of that individual or group’s actual or perceived age, ancestry or ethnicity, color, creed, disability, gender, gender identity or expression, immigration or citizenship status, marital status, national origin, race, religion, religious practice, or sexual orientation.

So what is a “bias incident”?  Virtually any expression that any hearer does not like for any reason, which also happens to be the very kind of speech the First Amendment is designed to protect.  So in this matchup, the First Amendment pick goes to the Kansas Jayhawks.

Virginia Commonwealth University v. Florida State University

This contests pits a school FIRE has not ranked (VCU) against one that earned its red light rating (FSU).  The Seminoles earned this distinction largely because of their numerous speech code policies that prohibit speech that creates “an intimidating, hostile, or offensive environment.”  While these policies punish a broad spectrum of protected speech, Florida State has also turned back two attempts to derecognize or defund religious student groups because they limit leadership to students who agree with the group’s religious views.  And under the principle that “practice beats policy,” this weighs heavily in the Seminoles favor.

Like Florida State, VCU prohibits speech that “of a hostile, intimidating, or offensive nature.”  While prohibiting “disruptive behavior,” its housing policy prohibits creating “emotional” disturbances, which could conceivably cover anything, including a fellow breaking up with his girlfriend.  (See here at page 31.)  And while the First Amendment guarantees students the freedom to distribute literature in the outdoor areas of campus, VCU either ties them to informational tables that can only be placed in limited areas or forces them to reserve “literature distribution areas.”  (See here at page 19.)  All of this is especially troubling since so many Virginia universities have “gone green” by reforming their policies to comply with the First Amendment.

In short, Florida State’s history of respecting religious groups compensates for its red light rating, especially since VCU has similar policies and should have learned from its neighboring schools.  So the First Amendment picks the Florida State Seminoles.

University of Kansas v. Florida State University

Moving from the Sweet Sixteen to the Elite Eight, Florida State’s history of respecting religious groups again compensates for its policies and gives it the advantage over Kansas’ unconstitutional policies.  So the First Amendment prediction is that the Seminoles will tomahawk the Jayhawks to earn a trip to the Final Four.

Check out the Sweet Sixteen of Liberty: Southeast Region 

 Check out the Sweet Sixteen of Liberty: East Region

This year’s NCAA Men’s Tournament has been very exciting—so far, seventeen games have been decided by five points or less.  But we know you all have really been saving your excitement for our picks for the rest of the tournament, based on the schools’ commitment to respecting the First Amendment rights of their students.  (The guidelines we’re using are the same that Casey used last year.)  Without further ado, here are the picks for the Southeast Region:

Butler v. Wisconsin

Butler University, a small private school in Indiana, won everyone’s hearts last year as the Cinderella team who made it all the way to the championship game and fought valiantly against the Goliath of the tournament—Duke.  The game came down to a desperation heave by Butler’s Gordon Hayward in the last seconds of the game.  (He missed.)  This year, Butler has already exceeded expectations by taking out Old Dominion in the second round in a two point game, and shocking No. 1 seed Pitt with a one-point nail-biter victory in the third round.

Now, everyone (including me) loves a scrappy underdog.  But does Butler deserve to win?  In 2009, Butler actually sued one of its students for writing an anonymous blog criticizing the school.  Now, it’s bad enough when universities punish students for their protected expression, but actually suing one of your students for money damages?  That is truly absurd. 

Luckily for Butler, however, they are playing the University of Wisconsin, one of the country’s most frequent violators of the First Amendment. 

The ADF Center for Academic Freedom has been litigating against the Badgers since 2006 because of its discriminatory student fee system.  Although the University of Wisconsin told the Supreme Court about ten years ago in the Southworth case that it would distribute student fee funds to all student organizations without viewpoint discrimination, the University more recently claimed that the Establishment Clause required it to eliminate funding for religious student expression.  The University of Wisconsin-Madison selectively denied funding to Badger Catholic, the large Roman Catholic student organization on campus because some of the students’ expressive activities contained too much of what the University defined as “prayer, proselytizing and worship.”   In September 2010, the Seventh Circuit reaffirmed that the Establishment Clause does not require such discrimination against religious student speech.  The court ruled that the University must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus.  The University filed a petition for writ of certiorari, but that was recently denied by the Supreme Court.

Even though Badger Catholic has now ended with a victory, we continue to fight for non-discriminatory distribution of Wisconsin student fees in the CFACT case, the third case we’ve litigated against the University’s Madison campus since 2006.  Our winner should come as no surprise, then.

Pick—Butler

BYU v. Florida

I’ll try to remain professional and not vindictively pick Florida to lose just because they managed to defeat my Bruins.  But there are plenty of other reasons why Florida is in deep trouble in this match up.

First, there’s the Gators’ red light rating from FIRE.  Among Florida’s numerous red light policies, we have this gem, their civility code:

A university is a place where self-expression, voicing disagreement, and challenging outmoded customs and beliefs are prized and honored. However, all such expressions and challenges need to be civil, manifesting respect and concern for others.

We’ve got no problem with encouraging students to be polite.  Heck, we like to think we’re pretty polite ourselves.  But requiring civility among adults in the storied “marketplace of ideas” is downright unconstitutional.  (The court in our case a few years back at San Francisco State held as much.) 

A friend and former client who shall remain nameless recently referred to Florida as “God’s school.”  But I don’t think the student members of Gator Christian Life and Beta Upsilon Chi (a Christian fraternity) would agree, since they were derecognized by the University simply because they had the audacity to require that their members and leaders actually be Christians, of all things.

Florida is in deep trouble, y’all.

BYU, on the other hand, as a private, religious school, is not rated by FIRE, through they have had a few minor controversies on campus, and appear to limit speech in outdoor areas of the campus.  But this match-up is much closer than it should have been given BYU’s incredibly oppressive policy of prohibiting flip-flops, at least on their Idaho campus.  (Shout out to my colleague Jenna Lorence for pointing this out!)  As someone who probably didn’t even own a pair of socks during my undergrad years, I think that’s just plain un-American!

Oppressed toes aside, BYU really comes nowhere near to the level of constitutional infractions Florida has accumulated. 

Pick—BYU.

Based on the above, it’s clear that the Southeast region’s representative in the Final Four should be BYU.  Butler’s luck in being paired against the University of Wisconsin runs out when compared to a less egregious offender of the First Amendment, and their second chance at a Cinderella season will be over soon.

Go Cougars!

Check out the Sweet Sixteen of Liberty: Southwest Region

Check out the Sweet Sixteen of Liberty: East Region