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More on Southwestern College and the Free Speech Patio

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I was working on an update to my last post on the First Amendment shenanigans going on at Southwestern College in California, but I realized I could not do a better job than my colleague Peter Bonilla has done. So, enjoy Peter's blog originally posted on The Torch earlier today:

A batch of articles this week in the Southwestern College (SWC) student newspaper The Sun are further testimony to the turmoil at the California college, where a financial crunch has begotten a full-blown free speech crisis.

SWC's wholly avoidable clash with the First Amendment began on October 22, when a group of students assembled on SWC's "free speech patio" to protest various class and budget cuts at the college. Yes, it's as bad as it sounds: it's the one place for free speech and assembly on campus, and it must be reserved ahead of time.

Frustrated by the restrictions in SWC's free speech policy, one of the students said to the group something along the lines of "Let's go where they can hear us." The students headed in the direction of SWC Superintendent/President Raj K. Chopra's office, but upon reaching the courtyard outside the president's office, they were met by a line of police officers who would not let them proceed further. To varying degrees, three SWC faculty members were also present at the rally and the courtyard. The crowd eventually dispersed, and the faculty members left independently of each other. (Chopra himself was not in his office. He soon left on vacation, his duties being temporarily assumed by Vice President for Business & Financial Affairs Nicholas Alioto.)

That evening, each of the three faculty members received hand-delivered letters from SWC's director of human resources, who arrived accompanied by a police officer. The letters informed each of the three that he or she had been placed on administrative leave from the college and were banned from campus under the California Penal Code, effective immediately, pending an investigation. For what? They had no idea. Alioto, in a later e-mail to the SWC community, denied that such action amounted to a suspension. Chopra, for his part, gave an unconvincing and contradictory defense of the incident to the San Diego Union-Tribune.

The incident garnered significant media attention, and both FIRE and the ACLU of San Diego and Imperial Counties condemned SWC's retaliatory act in letters to President Chopra.

Though the three faculty members were allowed to return to campus on November 4 and SWC asked that the criminal investigation be dropped, SWC formally reprimanded the three professors on the basis of a so-called independent investigation into the incident funded by SWC and that, unsurprisingly, found a different alleged transgression for which to fault each of the three professors.

Disappointingly, SWC has allowed the controversy to go on unresolved. As numerous articles this week in The Sun report, however, the SWC community is beginning to push back.

One hot-button issue the Sun touches on is the final report of the so-called independent investigation, bitterly panned by the SWC faculty. The investigation, conducted by local attorney Nancy Solomon at the behest of Acting Superintendent/President Alioto, in large part sided with SWC's version of the eventsa serious finding, given that the college was considering criminal charges. As it was, among the charges to be investigated were inciting the students to leave the free speech area, disregarding orders from the police to leave the area around the president's office, and physically confronting the officers when refusing to do so.

Southwestern College Education Association (SCEA) Vice President Andrew MacNeill was among the many to slam the report, telling the Sun, "The investigation was paid for by Chopra so she [Solomon] ... is going to write what he [Chopra] wants to hear." This mistrust may well be justified--both MacNeill and the Sun point out that Solomon's report relies overwhelmingly on the accounts of the police who were present at the event. The Sun notes, importantly, that Solomon "made no effort to contact other faculty and classified employees who witnessed the event."

Doing so likely would have helped. Among other things, Solomon concluded that "overwhelming evidence suggests that [English instructor Phil Lopez] was in some manner physically aggressive or at least threatening to be so." Lopez and numerous other eyewitnesses hotly contest this charge. Indeed, FIRE has a hard time believing it too, given that the photographs we have seen from the rally hardly suggest a confrontational atmosphere. Even the report has to stretch to find that Lopez somehow puffed out his chest in some kind of menacing way. Besides, SWC has never disputed the account of the rally that FIRE provided in our letter based on eyewitness accounts. 

For this self-serving report, SWC was willing to pay as much as $15,000. This figures makes the report a double insult to the SWC community, insofar as the report was an unnecessary expense in a time of very severe budget problems at SWC. Indeed, by November 13, mere days after the release of Solomon's report, Alioto (whose stint as acting president was set to end that day), sent an e-mail statement to the SWC community informing them that he had ordered the investigation discontinued, and had instructed that charges not be forwarded to the district attorney.

SWC still has much work ahead. For one, the letters of reprimand delivered to the faculty members must be rescinded and removed from their employment filespromptly.

Equally crucial is that SWC's appalling "free speech patio" policy be rescinded immediately. It exiles student expression to an area representing to a tiny percentage of SWC's 156-acre campus. SWC even declares the rest of the campus is a non-public forum, which is blatantly unconstitutionalin so doing, SWC has deemed the most traditional locations for free speech, such as green areas on campus, are off-limits to free expression. In fact, a rally taking place on November 13, barely an hour after Alioto's e-mail dropping the investigation was circulated, took aim at this unconstitutional policy, as well as at the atmosphere of fear and intimidation pervading SWC.

The Sun reports that the rally featured a diverse coalition of free speech defenders, including Congressman Bob Filner, representatives from the ACLU-SD, and Community Colleges Association President Ron Norton Reel. Absent from the event was President Chopra, despite Filner's entreaties for his presence. Of Chopra's absence Reel told the Sun, "I have a concern that one who wants to be called a leader is not here when we need some leadership."

FIRE holds out hope that we may soon see progress in opening up the SWC campus to the free speech SWC is legally and morally obligated to protect. A recent letter from SWC attorney Jonathan A. Pearl to FIRE promises to "carefully consider the issues and suggestions" we have raised regarding SWC's unconstitutional policy. Pearl also states that "the College welcomes any additional constructive input you wish to offer in this process."  Indeed, Alioto has invited FIRE to contribute its considerable expertise to a task force aimed at re-evaluating the policy. (When it comes to free speech, though, every minute the policy remains in place is an irreparable harm to everyone on campus.)

Meanwhile, a fed-up Sun editorial staff has issued a "revolutionary call for action," calling for numerous policy and governance changes. In addition to calling for an immediate repeal of SWC's free speech zone policy, the board calls for Chopra's ouster, exhorting SWC's Board of Governors to "help him find the door, one way or another."

As yet another Sun article relates, even the Board of Governors may not be immune from the fallout: a community group has initiated a campaign to recall five of the board members. Not among the targeted, notably, is Nick Aguilar, who was present at the November 13 rally sporting a T-shirt reading "Support students, get suspended."

Of course, FIRE is carefully monitoring all developments at SWC and is in touch with both students, faculty, and other organizations like the ACLU-SD who are working to change SWC's unconstitutional policies and oppressive culture. We're confident that working together, we can change SWC for the better. As always, we'll keep you posted.

Meanwhile, it turns out that absurd policies defining public campuses in California as "nonpublic forums" and designating tiny areas as free speech zones is far more common than I once thought. I hope that increased attention to the California public college system, inspired by the budget crisis, will help end this ridiculous trend before California finds itself battered both in the courts of law and the courts of public opinion, just like Texas Tech when it tried to defend its absurd "free-speech gazebo." Stay tuned.