On Campus, Only Some Free Speech Protected

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The publicly
funded William Paterson University in New Jersey reprimanded
Jihad Daniel
for discrimination and sexual harassment. The 63-year-old
Daniel, who is both an employee and a student at the university,
is now at the center of a free
speech controversy

He is also
a fine example of the sleight-of-hand being called “due process”
by universities that quash politically incorrect speech.

The facts are

On March 7,
Arlene Holpp Scala, chair of the Women’s Studies Department, sent
Daniel an unsolicited e-mail
of an upcoming film event: “‘Ruthie
and Connie: Every Room in the House,’ a lesbian relationship story.”

Scala advised those who wished to respond, “Please do not hit reply,
click here,” thus directing messages to her university e-mail address.

On March 8,
Daniel clicked to privately
, “Do not send me any mail about ‘Connie and Sally’ and
‘Adam and Steve.’ These are perversions. The absence of God in higher
education brings on confusion. That is why in these classes the
Creator of the heavens and the earth is never mentioned.” [His message
is quoted in full. No other communication with Scala ensued.]

On March 10,
Scala filed a complaint with the university claiming Daniel’s message
sounded “threatening.”

“I don’t want
to feel threatened at my place of work,” she explained.

On June 15,
university President Arnold Speert issued a letter
of reprimand
, to be placed in Daniel’s permanent employment

The unsavory
matter might have ended there, but the stakes were raised by the
Foundation for Individual Rights
in Education
(FIRE) and by Peter C. Harvey, the attorney general
of New Jersey.

FIRE’s mission
is “to defend and sustain individual rights at America’s increasingly
repressive and partisan colleges and universities.

“These rights
include freedom of speech, legal equality, due process, religious
liberty, and sanctity of conscience.”

Greg Lukianoff
of FIRE reminded
that his university, as a public institution, had a duty
to protect the “constitutional rights of all its faculty, staff,
and students … and that no federal, state, local, or university
rule, policy, or regulation trumps the exercise” of those rights.

Lukianoff flatly
stated, “No one here was ‘harassed’ or ‘threatened’ as defined by
the law.” Instead, the university “simply strongly disliked a student’s
point of view.”

the first
to FIRE was not from Speert but from Attorney General
Harvey, who replied “on behalf” of the university. Harvey said the
penalty against Daniel would stand because, as an employee, he had
violated New Jersey policies against discrimination, harassment
and creating a hostile environment in the workplace.

Several aspects
of the entire exchange are interesting.

First, the
entire weight of the state’s legal authority is being directed at
quashing Daniel’s personal response to an unsolicited e-mail –
an e-mail that invited feedback by instructing recipients on how
best to do so. The university obviously feels the need to draw a
big gun on this little man.

Second, Lukianoff
refers to Daniel as a student; both Speert and Harvey call him an
employee. Daniel is legitimately both, but in the capacity of student
he undoubtedly has more established procedural “rights” against
the university. The attorney general’s office clearly wishes to
reduce the “rights” it needs to recognize.

But as Lukianoff
states: “Even in a workplace, it is ridiculous to conclude that
a one-time e-mail constitutes unlawful discrimination and harassment.
It is especially ridiculous to apply such a policy to a working
student at an institution of higher education that has a special
responsibility to ensure academic freedom.”

Here the concept
of “due process” emerges in full. As with freedom of speech, the
university’s policies seem to reduce to the formula, “rights for
me but not for thee.”

For example,
according to Speert’s view of free speech, Scala has the right to
send an unsolicited and unwanted promotion of a pro-lesbian film
over the university’s network. Daniel has no right to respond with
his personal opinion and a request for no contact in the future.

According to
Speert’s view of due process, if Scala feels threatened by a moralistic
dismissal of an issue she chose to raise, then the attorney general’s
office should flex its muscle to protect a frail woman so imperiled.
Meanwhile, Daniel has no right to even examine the evidence brought
against him. He merely has the right to appeal.

In his letter,
Lukianoff stressed that “due process” was being disregarded in order
to chill dissent. Both Speert and Harvey replied that “due process”
was clearly in place and pointed to the administrative procedures
to which Daniel could appeal.

Making someone
jump through bureaucratic hoops that embody a biased procedure is
not due process. A kangaroo
that includes the right of appeal to a higher kangaroo
authority does not constitute due process. It is a travesty.

Due process
does not reside in bureaucracy. It is a set of legal principles
established through tradition to protect “the accused,” who is innocent
until proven guilty. Those principles include the right to face
and question your accuser, the right to examine all evidence against

Daniel has
been granted neither. And the most extraordinary aspect of this
denial of free speech and due process is that the attorney general’s
office felt it necessary to so quickly and heavily weigh in on a
small matter.

Or is it?

28, 2005

McElroy [send her mail] is the editor
of ifeminists.com and a research fellow
for The Independent Institute in Oakland,
Calif. She is the author and editor of many books and articles, including the
new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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