FIRE’s Letter to Chancellor of the University System of Georgia, Erroll B. Davis, October 23, 2007

By October 23, 2007

October 23, 2007
Chancellor Erroll B. Davis Jr.
Office of the Chancellor
Board of Regents of the University System of Georgia

Suite 7025

270 Washington Street, SW

Atlanta, GA 30334
Sent via U.S. Mail and Facsimile (404-657-6979)
Dear Chancellor Davis:
As you can see from our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, free speech, legal equality, due process, the right of conscience, and academic freedom on America’s college campuses. Our web page, www.thefire-dev.wp.eresources.ws, will give you a fuller sense of our identity and activities.
FIRE is gravely concerned about the threats to freedom of speech and due process presented by Valdosta State University’s (VSU’s) May 7, 2007, administrative withdrawal of student T. Hayden Barnes.
By issuing Barnes a notice of administrative withdrawal and alleging that he constitutes a “clear and present danger” on the basis of his protest against proposed construction on campus, VSU has effectively expelled a student for engaging in core political speech entirely protected by the First Amendment. By completely ignoring established protocol for student punishment and withdrawal, VSU has denied Barnes any semblance of the due process to which he is entitled under the Fifth and Fourteenth Amendments.
This is our understanding of the facts. Please inform us if you believe we are in error. On March 22, 2007, an article published in VSU’s student newspaper, the Spectator, outlined VSU’s plans for constructing two parking decks on campus. (“Parking decks to be built at VSU,” Matthew Smith, March 22, 2007.) The article reported that the proposed parking decks would likely cost around 30 million dollars, paid for by mandatory student fees. Concerned about the environmental impact of the decks’ construction, Barnes posted flyers detailing potential alternatives and providing contact information for both VSU President Ronald M. Zaccari and the Board of Regents. Additionally, Barnes e-mailed Zaccari, the Student Government Association, the Faculty Environment Committee, and the Board of Regents a letter cataloguing his concerns, proposing alternatives he saw as less environmentally damaging, and discussing other projects of similar cost. Barnes also started a blog to detail his campaign’s progress, posting supportive responses from fellow students and faculty.
On March 26, Barnes was informed by members of Students Against Violating the Environment (SAVE), a VSU student group, that Zaccari was upset by his flyers, and that in discussion with SAVE, Zaccari had specifically mentioned Barnes by name. (SAVE members also indicated their reluctance to publicly oppose the parking deck proposal.) In response, Barnes quickly took down the flyers and deleted his blog. Barnes also wrote Zaccari, apologizing for offending or angering him. On April 9, 2007, Barnes learned from VSU Project Manager Michael Miller that a vote on the parking garages was scheduled for the following day, April 10. Wishing to voice his opinion of the proposed garages before the vote, Barnes immediately telephoned several members of the Board of Regents, explaining his opposition. In conversation, Barnes carefully emphasized that he represented only himself and that the views he expressed on the matter were his own.
Wishing to further discuss the issue, Barnes met with Zaccari and Dean of Students Russ Mast at Zaccari’s office on April 9 at 5:00 PM. Barnes outlined his concerns and potential alternatives to the proposed construction. According to Barnes, Zaccari told Barnes that he had “personally embarrassed” him and asked him “who he thought he was.” This exchange elicited another apology from Barnes. Further, Zaccari reportedly informed Barnes that Zaccari thought he had “gone away” after his earlier written apology, that Barnes had “made life hard” for Zaccari, and that Zaccari “could not forgive him” even though his actions spurred Zaccari’s “fatherly instincts.” Finally, Barnes says Zaccari repeatedly expressed concerns about his “legacy” as president of VSU.
On April 13, Barnes posted a collage of pictures on his personal page on the popular social networking site Facebook.com (attached). Specifically, the collage consisted of pictures of Zaccari, a parking deck, a bulldozer excavating trees, a flattened globe marked by a tire tread, automobile exhaust, a gas mask, an asthma inhaler, a public bus underneath the “not allowed” symbol (a red circle crossed by a diagonal line), United States currency, and a photocopy of the Climate Change Statement of the American College & University Presidents’ Climate Commitment, which SAVE had been lobbying Zaccari to sign. Among other captions, the collage was also marked by the following text, interspersed variously with the pictures: “No Blood For Oil,” “More Smog,” “Bus system that might have been,” “Climate change statement for President Zaccari,” and “S.A.V.E.–Zaccari Memorial Parking Garage,” with the last item intended as a reference to both SAVE’s reluctance to oppose the parking decks and Zaccari’s discussion of his “legacy” during his meeting with Barnes.
On April 19, the Spectator published a letter to the editor authored by Barnes in reference to the proposed parking deck plans. In his letter, Barnes again emphasized the “legacy” question, stressing the negative long-term impact of the parking decks’ construction:
Parking decks are a waste of valuable University real estate. I think the decision to build these parking decks is going to be looked down upon by future generations who are going to recognize them for what they are, a bad investment, a short-term solution to a long-term problem…. Do we want to continue coming across as a commuter college? I think VSU has the potential to be a major economic engine for South Georgia and will host pioneering research one day. The question is, do we want to see that happen in five years or twenty? We have to make the tough decisions and investments now to see that come to fruition in the future.
On April 26, Barnes wrote Zaccari, requesting an exemption from the mandatory student fee ($100) designated for financing construction of the parking garage. Barnes requested that his money be directed instead towards VSU’s environmental programs or SAVE.
On May 7, Barnes found a letter of notice of administrative withdrawal had been slipped under his dormitory door. Bearing Zaccari’s signature, the notice informed Barnes that “as a result of recent activities directed towards me by you, included [sic] but not limited to the attached threatening document, you are considered to present a clear and present danger to this campus.” The “threatening document” attached to the notice was the collage posted by Barnes on Facebook.com. The notice cites Board of Regents Policy Manual Section 1902 as grounds for Barnes being “administratively withdrawn from Valdosta State University effective May 7, 2007.” Specifically, Section 1902 reads, in relevant part, as follows:
Any student… who clearly obstructs or disrupts, or attempts to obstruct or disrupt any teaching, research, administrative, disciplinary, or public service activity, or any other activity authorized to be discharged or held on any campus of the University System is considered by the Board to have committed an act of gross irresponsibility and shall be subject to disciplinary procedures, possibly resulting in dismissal or termination of employment.
The notice further stipulates that Barnes must provide both “correspondence from a non-university appointed psychiatrist indicating that [he is] not a danger to [himself] and others” and “[d]ocumentation from a certified mental health professional indicating that during [Barnes’] tenure at Valdosta State [he] will be receiving on-going therapy” as a condition for readmission. The notice concludes by granting Barnes the option of appealing Zaccari’s decision to the Board of Regents within 20 days. Barnes was given 48 hours to vacate his dormitory.
Barnes provided notice of appeal of Zaccari’s decision to the Board of Regents on May 21. With his written appeal, Barnes included letters of support from his mother; Stephen M. Childs, Professor of Anthropology, Sociology and Criminal Justice at VSU; and Dr. Kevin Winders, a non-university-appointed psychiatrist. Barnes provided his full written appeal to former Associate Vice Chancellor for Legal Affairs Elizabeth E. Neely on June 27, who presented Barnes’ appeal to the Board of Regents at the Board’s August 7-8 meeting. After reviewing the appeal, the Board of Regents recommended that the matter be referred to an Administrative Law Judge for further hearing, and informed Georgia Deputy Attorney General Dennis R. Dunn of its decision. The Office of State Administrative Hearings (OSAH) now has jurisdiction over Barnes’ appeal. The hearing is scheduled to take place on November 26, 2007; meanwhile, however, Barnes remains effectively expelled.
Because Barnes’ appeal is now being adjudicated by an Administrative Law Judge for OSAH, the interests of VSU and the Board of Regents are being represented by Thurbert E. Baker, Attorney General for the State of Georgia. In its most recent Statement of Appeal, VSU argues that Barnes “was administratively withdrawn from school because he posed a threat to President Zaccari and to the campus, and that the administrative withdrawal was neither arbitrary nor capricious.” VSU argues that President Zaccari reached his conclusion that Barnes’ “presence on campus could create a clear and present danger of material interference with the normal operation of VSU” and that Barnes had “clearly obstructed or disrupted, or attempted to obstruct or disrupt, administrative activities on campus” after careful review of the “totality of the circumstances.”
VSU HAS PUNISHED BARNES FOR PROTECTED SPEECH
As a public institution funded by taxpayers, VSU is bound by the First Amendment to the United States Constitution and may not violate the expressive rights of its students. President Zaccari’s administrative withdrawal of Barnes cannot be considered as anything other than a deliberate decision to punish a student for engaging in constitutionally protected speech, in direct violation of Zaccari’s and VSU’s legal and moral obligations under the First Amendment.
Specifically, VSU contends that the totality of Barnes’ statements—on his blog, on his personal Facebook.com page, on flyers posted around VSU’s campus, and in conversation with members of the Board of Regents and President Zaccari—provides sufficient justification for Barnes’ removal. Even a cursory examination of the facts upon which this claim is based reveals that VSU’s argument is utterly devoid of merit.
First, in paragraph 3 of the Statement of Appeal, respondents note that Barnes “authored flyers that were placed across VSU’s campus opposing planned parking decks. During this same time, Petitioner maintained a Facebook website and a blog website concerning the issue of parking decks.” Posting flyers on VSU’s campus unquestionably constitutes protected speech under the First Amendment, and students like Barnes who wish to post flyers must be free to do so regardless of their political, religious, or ideological beliefs. Similarly, Barnes’ maintenance of websites devoted to opposing VSU’s proposed parking garages is a prime example of core political speech, which plainly enjoys the First Amendment’s protection.
In paragraph 5, respondents state that Barnes “contacted the Governor’s office, the Chancellor’s office, and numerous members of the Board of Regents concerning the parking deck issue, telling them that he had met with President Zaccari on this issue, when he had not.” First, Barnes disputes ever claiming to have already met with Zaccari in his communications with the aforementioned offices. But even if Barnes had done so, that in no way diminishes the fact that contacting the offices of public officials to air grievances is also a textbook example of protected political speech, which cannot constitute grounds for expulsion from a public university.
In paragraph 10, respondents state that Barnes “sent an email to President Zaccari referencing Easter Island and mocking its business plan.” Again, despite what respondents perceive to be a rude or mocking tone, Barnes’ speech is still completely protected. Under even the most rudimentary definition of freedom, people are allowed to be rude or engage in mockery. The Supreme Court has explicitly held on numerous occasions that speech cannot be restricted simply because it offends people. In Street v. New York, 394 U.S. 576, 592 (1969), the Court held that “[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” In Terminiello v. Chicago, 337 U.S. 1, 4 (1949), the Court held that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In Texas v. Johnson, 491 U.S. 397, 414 (1989), the Court explained the rationale behind these decisions well, saying that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Under these standards, there can be no question that mocking a public university’s business plan is protected by the First Amendment.
In paragraph 9, respondents reference the collage Barnes posted on his Facebook.com site on April 13, along with one of the accompanying captions: “S.A.V.E.–Zaccari Memorial Parking Deck.” Additionally, in paragraph 11, respondents note that Barnes (a) had “posted a link on his website page to an article discussing the massacre at Virginia Tech”; (b) had linked to an advertisement for a film competition sponsored by commercial photography site Webshots.com, which featured the tagline “Shoot it. Upload it. Get famous. Project Spotlight is looking for the next big thing. Are you it?”; and (c) had commented on his website that he was “cleaning out and rearranging his room and thus, his mind, or so he hopes.”
In what can only be considered a dazzling display of paranoia and self-importance, Zaccari mistook these texts to constitute, in combination, “a specific threat to his safety and a general threat to the safety of the campus,” rather than the quotidian musings of a college student on his website. Indeed, according to VSU’s Statement of Appeal, on the basis of this perceived “threat,” Zaccari went so far as to spend taxpayer money to be “accompanied to high-profile events by plain-clothed police officers,” in addition to placing uniformed police officers on “high alert.” (It is to be noted that despite his alleged perception of Barnes as a “clear and present danger,” at no time did Zaccari see fit to notify the campus of the danger presented by Barnes, a lapse VSU explains as due to his “concern that the campus would erupt into chaos if the threat against him became public.”)
It strains credulity to believe that an adult American citizen—let alone the president of a public university—could somehow construe the tagline of a Webshots.com advertisement to be not merely an invitation for contest submissions, but rather a “specific threat” to his or her person or a “general threat” to his or her immediate surroundings. Similarly, it is difficult if not impossible to perceive any hint of a threat in Barnes’ offhand statement about cleaning his room. Nor does the inclusion of a hyperlink to an article discussing the national tragedy at Virginia Tech provide any evidence whatsoever that Barnes presented a threat of any kind. If simply discussing the tragic events at Virginia Tech is all that is required to render a citizen a “threat,” then surely much of the American populace could have been considered as such in the aftermath of that event. To infer that Barnes’ hyperlink to an article about the news of the day—news that was surely weighing on the minds of every college student in the nation—is indicative of his presenting a “clear and present danger” is simply ridiculous. To actually expel a student on this basis, as VSU has done here, is to mock our nation’s normative conceptions of fairness and justice.
Finally, with regards to the collage caption’s reference to the “S.A.V.E.–Zaccari Memorial Parking Deck,” Zaccari’s inference is patently absurd. By using the term “memorial,” Barnes was referring to Zaccari’s repeated mentions of his concern about his “legacy” as VSU’s president. The caption utterly fails to meet the exacting legal definition of a “true threat” as articulated by the Supreme Court in Virginia v. Black, 538 U.S. 343, 359 (2003), in which the Court held that only “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” are outside the boundaries of First Amendment protection. The idea that a reference to a parking garage named after a university president could constitute a serious threat upon that president’s life strains credibility beyond the breaking point.
An examination of the “totality of the circumstances” cited by VSU and the Board of Regents demonstrates that Barnes’ speech—considered either in part or in the aggregate—in no way justifies punishment of any kind, let alone effective expulsion from the university. It is impossible to find evidence of any intent on Barnes’ part to cause any harm whatsoever to fellow students, teachers, university administrators, or President Zaccari. Despite respondents’ clear intimation that the proximity of the Virginia Tech shootings somehow justified removing Barnes from campus as a “preventative measure,” that tragedy is not an excuse for arbitrary expulsion of any impassioned dissenter. Such an argument both distorts and cheapens the sad events of April 16, 2007, and is unworthy of an institution of higher education. Further, no public institution may retaliate against a student for speech fully protected under the First Amendment because others on campus—even the president—feel offended, annoyed, or unreasonably claim to feel subjectively “threatened.” If allowed, such an “exception” to the First Amendment would permit public institutions to deny basic rights virtually at their whim.
VSU HAS VIOLATED BARNES’ RIGHT TO DUE PROCESS
The circumstances of Barnes’ removal represent a blatant violation of both VSU’s own established hearing procedures and Barnes’ Fifth and Fourteenth Amendment rights to due process.
Pursuant to Board of Regents Policy Manual Section 401.01, Valdosta State University’s Student Conduct Office has established controlling guidelines (“Hearing Committees and Process”) for student discipline and appeal. The Student Conduct Office states that “disciplinary sanctions shall be applied only after the requirements of due process, fairness, and reasonableness have been met. The aim of any disciplinary action is the redirection of student behavior toward the achievement of their academic goals.” Protocol for conducting hearings, and accused students’ rights therein, are also provided (“Hearing Procedure”) by the Student Conduct Office. Additionally, the Student Conduct Office maintains a list of applicable “Rights of the Student,” detailing those procedural protections afforded the student in accordance with the Fifth Amendment’s requirement of due process. Specifically, the Student Conduct Office proclaims:
[T]he accused student shall be afforded all rights required by due process, including:
A.     The right to an advisor of one’s choice.
B.     The right to present information on one’s behalf.
C.     The right to question one’s accuser(s).
D.     The right to call witnesses on one’s behalf.
E.      The right to remain silent and have no inference of responsibility drawn from one’s silence.
F.      The right to question all witnesses.
G.     The right to appeal all sanctions.
H.     The student may also have a verbatim transcript made at one’s own expense. Valdosta State University shall have this option at its own expense too.
I.        The right to attend classes and required Valdosta State University functions until a hearing is held and a decision is rendered.
Exceptions to this are made when a student’s and or [sic] an organization’s presence could create a “clear and present danger” of material interference with the normal operation of Valdosta State University.
Save the right to appeal, Barnes was not granted any of these rights so enumerated.
Further, VSU’s attempt to establish a “clear and present danger” exception to its protocol does not justify its failure to provide Barnes with any of the due process protections to which he is constitutionally entitled, nor does the fact that VSU claims Barnes presented a “clear and present danger” make such a statement true. Indeed, the very use of the term “clear and present danger” in this context obfuscates the phrase’s established—and obsolete—jurisprudential meaning and value. See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (creating “clear and present danger” test for speech); Dennis v. United States, 341 U.S. 494, 510 (1951) (refining “clear and present danger” test to account for probability of speech having negative effect); Brandenburg v. Ohio, 395 U.S. 444, 449-50 (1969) (Black, J., concurring) (joining Justice Douglas in concurring in judgment on understanding that “the ‘clear and present danger’ doctrine should have no place in the interpretation of the First Amendment”). Simply put, VSU cannot circumvent Barnes’ right to due process simply by invoking a outmoded legal term and then applying it without explanation, justification, or oversight.
Additionally, the Student Conduct Office maintains a governing policy on “Mental Health Withdrawal,” which reads:
To ensure that Valdosta State University students receive due process rights, Valdosta State University has initiated the following Mental Health Withdrawal Procedure. Before a student may be withdrawn for mental health reasons there must first be the following chain of events:
1.      The student displays behavioral indicators, which are determined by a mental health professional to be of danger to himself/herself or others.
2.      When a mental health professional recommends that a student needs to be withdrawn from school for mental health reasons, an informal hearing will then be set up to determine whether or not the student should be withdrawn.
3.      In this informal hearing, conducted by the Office of the Dean of Students, the student or his or her representative may present any pertinent information that he or she believes will have a bearing on the particular case.
This procedure is enacted to insure that the student’s legal rights are not violated and that the University has the right to remove any student whom it feels, based on professional evaluation, may present a danger to himself/herself or others.
Barnes’ dismissal by Zaccari seems to be predicated on precisely these terms, indicating that Zaccari believed Barnes’ withdrawal qualified as a “mental health withdrawal.” Indeed, the language used by Zaccari in the notice of administrative withdrawal delivered to Barnes mirrors the language of the Student Conduct Office’s policy. The notice informed Barnes that he was “considered to present a clear and present danger to this campus.” The notice also required that Barnes present “correspondence from a non-university appointed psychiatrist indicating that [Barnes was] not a danger to [him]self and others,” as well as “[d]ocumentation from a certified mental health professional indicating that during [Barnes’] tenure at Valdosta State [Barnes] will be receiving on-going therapy.” However, despite invoking the terms employed in the “Mental Health Withdrawal” procedure, and requiring further psychiatric testing, Barnes was afforded no opportunity to “present any pertinent information that he believes will have a bearing on the particular case,” as provided by the controlling policy.
Zaccari’s willful disregard for existing Valdosta State Policy betrays his contempt for the constitutional right to due process by which VSU is legally bound. As the Supreme Court held in Goss v. Lopez, 419 U.S. 565, 573 (1975), when “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of the clause must be satisfied, including in the case of school suspensions.” The Supreme Court has upheld Goss’ requirement in the context of public universities, holding that “with the suspension of a student from public school for disciplinary reasons, ‘that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.’” Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 85 (1978) (internal citations omitted). However, VSU has completely failed to satisfy Goss’ requirements, thus refusing to meet even the most minimal standards of required due process.
After discovering the notice of administrative withdrawal slid under his dormitory door, Barnes was granted no hearing, no knowledge of the charges brought against him, no right to question his accusers, no advisor, no opportunity to present information, no right to call witnesses on his behalf, and no right to question witnesses brought against him. To effectively expel a student—as VSU has expelled Barnes—is the harshest punishment a university may issue. To do so without affording that student even the slightest fragment of the due process protections required by the Fifth Amendment, or even its own contractual promises, is unconstitutional, unlawful, and immoral.
T. Hayden Barnes cannot legally be expelled by VSU and deprived of his Fifth Amendment right to due process for engaging in speech protected by the First Amendment. FIRE requests that your administration immediately drop its opposition to Barnes’ appeal, reverse the administrative withdrawal order against him, and ensure that any record of this matter be expunged from his administrative record.
We urge VSU and the Board of Regents to show the courage necessary to admit VSU’s error. Please spare the University System of Georgia the deep embarrassment of fighting against the Bill of Rights, by which it is legally and morally bound. While we hope this situation can be resolved amicably and swiftly, we are committed to using all of our resources to see this situation through to a just and moral conclusion.
Because of the time-sensitive nature of the current proceedings, FIRE asks for your response by October 29, 2007. We look forward to hearing from you.
Sincerely,
William Creeley
Senior Program Officer
cc:
Governor Sonny Perdue, State of Georgia
Angie Allison, Office of the Governor
Congressman Sanford D. Bishop, Jr., United States House of Representatives
Representative Ron Borders, Georgia State House of Representatives
Thurbert E. Baker, Attorney General, State of Georgia
Honorable Dennis R. Dunn, Deputy Attorney General
DeBrae Kennedy, Assistant Attorney General
Allan Vigil, Chair, Board of Regents of the University System of Georgia
William H. Cleveland, Vice Chair, Board of Regents of the University System of Georgia
J. Burns Newsome, Associate Vice Chancellor, Office of Legal Affairs, Board of Regents of the University System of Georgia
Kenneth R. Bernard Jr., Member, Board of Regents of the University System of Georgia
James A. Bishop, Member, Board of Regents of the University System of Georgia
Hugh A. Carter, Member, Board of Regents of the University System of Georgia
Robert F. Hatcher, Member, Board of Regents of the University System of Georgia
Felton Jenkins, Member, Board of Regents of the University System of Georgia
W. Mansfield Jennings Jr., Member, Board of Regents of the University System of Georgia
James R. Jolly, Member, Board of Regents of the University System of Georgia
Donald M. Leebern Jr., Member, Board of Regents of the University System of Georgia
Elridge McMillan, Member, Board of Regents of the University System of Georgia
Patrick S. Pittard, Member, Board of Regents of the University System of Georgia
Doreen Stiles Poitevint, Member, Board of Regents of the University System of Georgia
Willis J. Potts, Member, Board of Regents of the University System of Georgia
Wanda Yancey Rodwell, Member, Board of Regents of the University System of Georgia
Benjamin J. Tarbutton III, Member, Board of Regents of the University System of Georgia
Richard L. Tucker, Member, Board of Regents of the University System of Georgia
Ronald M. Zaccari, President, Valdosta State University
Laverne L. Gaskins, University Attorney, Office of Legal Affairs, Valdosta State University
Louis Levy, Vice President for Academic Affairs, Valdosta State University
Kurt J. Keppler, Vice President for Student Affairs, Valdosta State University
Russ Mast, Dean of Students, Valdosta State University
Sharon Gravett, Assistant Vice President for Academic Affairs, Valdosta State University
Encl.
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Schools: Valdosta State University Cases: Valdosta State University: Student Expelled for Peacefully Protesting Parking Garages