That explanation didn’t fly with Kissel, who sent a second letter on March 23rd, copying Ohio Governor John R. Kasich and Ohio Attorney General Mike DeWine, stating that “free speech remains chilled at SCC so long as the Student Code of Conduct impermissibly bans “distribution … of materials on Sinclair owned or controlled property.” The letter called for Sinclair to bring the college’s policies into compliance with the First Amendment. The college didn’t respond. On May 2nd, a third letter addressed to Lawrence Porter, Chair Board of Trustees, Sinclair Community College, was sent. In it Mr. Kissel noted that “SCC maintains two conflicting policies regarding distribution of literature, both of which are unconstitutional.” The letter notes that while “it might be constitutional to ban distribution of materials by students in a classroom during class time, it is not constitutionally permissible to ban such distribution after class. Indeed, such locations are exactly where the marketplace of ideas should be at its most robust.”
Back to Ms. Iseli. When I pressed her on whether or not Borel-Donohue could distribute literature once class had ended, she told me the college had “asked” Ms. Borel-Donahue to refrain from doing so. When I asked what would happen if Borel-Donohue decided to ignore the “request,” Ms. Iseli, who explained that she “was not an attorney,” speculated that the Code of Conduct might be used to discipline Borel-Donohue.
The Code of Conduct contains three levels of “Prohibited Behavior.” They escalate from “First Time Misconduct or Minor Violations,” to “Repeat Misconduct or More Serious Misconduct,” to “Major Misconduct.” Ms. Borel-Donohue has ostensibly committed a level one violation, which prohibits “Solicitation, distribution, selling or promotion of materials on Sinclair owned or controlled property.” Presumably, Ms. Borel-Donohue, who has said she is considering defying the ban, could be charged with a level two violation were she to make good on her intentions.
Yet Adam Kissel, with whom I also spoke with on Friday, is confident that FIRE and Ms. Borel-Donohue will ultimately prevail. He noted FIRE”s “perfect” track record with respect to court decisions regarding students’ First Amendment rights versus campus speech codes, and he noted that part of the Higher Education Act re-authorized by president George W. Bush in 2008–with bipartisan support–contained a sense of Congress resolution stating that ”an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” With respect to due process, Congress noted that college “students should be treated equally and fairly” adding that any student sanctions should be imposed “objectively and fairly.”
In an interview last February, after a speech at the meeting of the Conservative Political Action Committee (CPAC), Kissel explained that “two thirds of public universities have un-Constitutional speech codes, blatantly un-Constitutional,” adding that college campuses “have all these offices for diversity that are telling students, ‘no, not only shouldn’t you say the things that offend people, but you can’t, and we’ll punish you if you do.’” He also noted that “if the average citizen knew what was going on on campus, they would be outraged.”
Here’s hoping Mr. Kissel is correct. For far too long, far too many universities have elevated the inappropriately coined “right to not be offended” over the Constitutionally-protected right to speak one’s mind absent fear of retribution. In an Orwellian sense, Mr. Kissel noted that “intellectual diversity,” which is invariably cited by college officials as the reason for speech codes, “is last on the list, if it shows up at all” on college campuses. Apparently Sinclair Community College is no exception–at least for now. As Kissel remarked to me, “sunlight is the best disinfectant.” The sun is now shining on SCC.
Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.
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