John Rustin | April 7, 2016 | SHARE: 
In Part 2 of this 2-part series, NC Family president John Rustin continues a discussion he began last week with Robert Shibley, executive director of the Foundation for Individual Rights in Higher Education (or FIRE), about freedom of speech on college and university campuses in North Carolina, and how we can better protect academic freedom.
INTRODUCTION: Our guest today is Robert Shibley is Executive Director of the Foundation for Individual Rights in Higher Education, or FIRE. We are going to continue a discussion we began last week on ways we can protect and promote the freedom of speech for students on our college and university campuses, specifically how North Carolina is doing to protect student speech. Robert, welcome back to Family Policy Matters.
JOHN RUSTIN: At UNC-Chapel Hill, back in 2011, FIRE was involved in a case where a religious student group on campus was investigated for dismissing a student who would no longer adhere to the group’s beliefs concerning homosexuality. Tell us a little bit about that case, and how was it resolved?
ROBERT SHIBLEY: That was the Psalm 100 case. Psalm 100 is an explicitly Christian a cappella group at UNC-Chapel Hill. I don’t know if it’s still in existence, but it certainly was at the time, and to be part of the group you had to share this group’s statement of beliefs, which were a pretty conventional set of Christian beliefs, one of which is that you shouldn’t have sex outside of heterosexual marriage. They had a student in the group, who had come to the group and said he believed that, and then he came to leadership and said, “You know what, I’m gay and I can’t say that I believe this anymore, so I have to leave.” They ended up voting to dismiss him from the group. Apparently, it was a very sad time, everybody was upset about it, but they felt like they had to. Then, he actually changed his mind and said, “Well actually, while I am gay, I think I can still live this out,” so they voted to readmit him to the group, and then he said one more time that, “Well actually I don’t think I can do it,” and then they voted to dismiss him again. At that point, the university got involved and decided that it was going to investigate Psalm 100 for discrimination on the basis of sexual orientation. We’re actually seeing this, and this is an increasing problem across the country, and thankfully not so far at UNC-Chapel Hill, where colleges are saying that student groups have to accept any student as a member, regardless of whether or not they actually share the beliefs of the group. And, unfortunately back in 2012, the Supreme Court actually gave its seal of approval to a form of this, what they call “All Comers” policies, and so we are increasingly seeing Christian groups that do require beliefs for membership or leadership, kicked off of campuses. Most prominently the California university system has a rule like that, and Vanderbilt is actually the most prominent school that kicked off 13 Christian student groups because they wouldn’t agree that their leaders could have any old beliefs, and they’ve made that stick.
JOHN RUSTIN: Being a Tarheel myself, I was encouraged to hear that UNC-Chapel Hill has been rated a green light. What is UNC-Chapel Hill doing well that other universities and the state can learn from.
ROBERT SHIBLEY: The main thing that distinguished UNC-Chapel Hill was after years and years of going back and forth with FIRE about their policies, we actually have had more cases—and when we say cases we mean sort of incidences that come to FIRE, not necessarily legal cases—but we’ve had more cases with UNC-Chapel Hill than with many other schools. It used to be sort of a Christmas tradition for us, as a matter of fact, I think, two or three years in a row Chapel Hill would make a blunder, and we would have to call them on it around the Christmas season. But I guess the leadership has changed and maybe attitudes have changed a little bit as well, and now we’re really happy that the current people in office there have come to FIRE and decided to work with us instead of running over and over right up against the Constitution. FIRE, we actually employ two full-time attorneys, one from an Ivy League school, just to work with colleges and universities for free of course, to change their policies. FIRE is a charity. There’s actually a whole industry of folks who charge a lot of money to work on university policies. We do it for free, and we try to get you compliant with the Constitution, and so we’re always looking for more schools to do that. And I would invite any school in the University of North Carolina system, or private school, to call us up, and we’re happy to work with you.
JOHN RUSTIN: And in North Carolina I know that a few years ago the General Assembly enacted some laws to protect student speech, including the passage at the time Senate Bill 719, which clarifies that religious and political student groups at the state’s public colleges and universities can actually limit their leadership to students who are committed to the group’s mission or faith. How important do you believe legislation like this is to protect student speech?
ROBERT SHIBLEY: FIRE actually believes that the Supreme Court wrongly decided the CLS vs. Martinez case, and before that case came down we would have said we don’t think legislation is necessary, we think that that’s a free-standing constitutional right (right) right of Freedom of Association. Unfortunately the Supreme Court doesn’t agree with us, we don’t believe they’re right, but I think legislation is now really the only alternative to make certain that that sort of thing is going to happen. Obviously, you could have schools that make that decision on their own, and many of them still do, but they’re going to continue to come under pressure to change those to these “All Comers” policies. And, you know what’s particularly objectionable actually about the “All Comers” policies, is that they’re actually not “All Comers” policies. The Supreme Court approved policies that said, “Hey, every group has to take every student who wants to become involved regardless of belief, regardless of you know any other characteristic.” But almost no school actually has that, for instance, Vanderbilt says it has an “all comers” policy but somehow, mystifyingly fraternities and sororities are exempted from it, as are other societies. That’s not what the Supreme Court said, they didn’t say we’re against all discrimination unless it’s by fraternities and sororities against people of the opposite gender. So, I think those schools are on pretty thin ground, although I haven’t seen a real challenge. There have been some challenges to it, I don’t think there’s been any definitive and certainly not at the Supreme Court level. But the trend is definitely going in the wrong direction there. I think my recommendation to religious groups is to prepare to be kicked off campus, and prepare to try to work within a system that frankly is systemically discriminating against religious people.
JOHN RUSIN: Robert I know that FIRE also worked with North Carolina lawmakers to enact another important law in 2013 that guarantees college students a right to an attorney. Tell us about that law, which I believe may have been the first of its kind in the nation, and why that’s important?
ROBERT SHIBLEY: That’s right, the “Student Administration Equality Act” was passed a couple of years ago to protect students who are being brought in front of those university tribunals, whether it be for speech, or for anything else, and denied the ability to have any kind of real representation there. Most universities in other states still don’t allow a lawyer to participate in these hearings, and you might say that seems like overkill, why would a student need a lawyer for that, and that’s actually the argument we hear a lot in opposition to it. But what people don’t really understand is that universities are hearing extremely serious offenses. Obviously, sexual assault on campus is a big issue right now. Campuses are holding rape trials, and they are holding trials to determine whether or not someone sexually assaulted another person. And then they’re claiming, “Well, these are just academic sanctions,” although being expelled and declared a rapist and having that put on your transcript or your record pretty much seals your fate if you want to get any more education and frankly a huge variety of jobs. It is a career ruiner, and yet universities are saying that you should have almost no rights when that happens, you shouldn’t have the right to an attorney, you don’t have the right not to incriminate yourself, and you don’t have the right in many cases even to question the person who is accusing you; you just have to sit there, and you’re not allowed to poke any holes in their story. So, North Carolina’s legislature acted to guarantee the right to counsel for students. And while that doesn’t solve everything, it’s not a panacea, at least there will be somebody in the room who is a professional, who knows what they’re doing, or at least they’ll have a chance to get that, and to say, “Hey, this isn’t a fair trial, or you’re forgetting this particular thing.” And that’s why, lawyers get a bad wrap, but they are experts at trying to figure out how to run a court, and that’s what these campuses are doing. They might like to pretend they’re not, but they are. This isn’t a plagiarism trial, this could be a sexual assault trial, this can be underage drinking, and these are crimes that they’re adjudicating. There’s also the added complication in may cases, since they are crimes everything they say in front of that tribunal can be introduced in a real court, so they’ve effectively be stripped of their Fifth Amendment rights.
JOHN RUSTIN: Wow. Robert, many of our listeners may recall that a few years ago North Carolina was also the focus of a high profile case dealing with academic freedom, this one concerning conservative professor Dr. Mike Adams at UNC-Wilmington. Now, Dr. Adams sued the university for retaliating against him for his political viewpoints he expressed in columns he wrote for non-university publications. He won that case and it received national attention. Tell us about that win, and what it means for academic freedom on campus, not only at UNC-Wilmington but also nationwide
ROBERT SHIBLEY: Mike Adams’ case was really a disgraceful attempt by the University of North Carolina Wilmington administration of very blatant ideological policing of faculty members. And actually that case may have started in 2004, but actually continued a couple of years ago, because of all the appeals and everything else. So, Mike Adams didn’t actually get finished going through the entire process for I think eight or nine years, and that’s the sort of thing that can happen. And the reason it became a particularly big issue is because of another Supreme Court decision that has had some deleterious affects on academic freedom and that’s called the Garcetti decision. And in that decision the Supreme Court determined that basically as an employer, the government has the right to regulate speech that’s not an issue of public concern. It’s kind of hard to follow and understand, but the important thing to remember about Garcetti is that the groups like FIRE who weighed in on this case in the amicus area, they went to the Supreme Court while they were deciding it, and said you need to worry about these things on the side, said that this could be a real problem with professors because they’re state employees, but they’re supposed to speak out on things that are in their expertise and we expect them to do that, which is what Mike Adams was doing. So, there is actually a footnote in the Garcetti decision saying. “This may not apply to professors, but we don’t have to decide that now so we’re not going to.” So, different circuits are coming to different conclusions about whether or not these restrictions apply to professors. Thankfully, in Mike Adams’ case, it’s probably the leading case, and it’s here in the Fourth Circuit, saying that professors in fact shouldn’t be bound by Garcetti, but their speech should be evaluated under another test. So, I think ultimately this probably will go to the Supreme Court, and I think Mike Adams will be an important precedent in that case.
JOHN RUSTIN: Robert, if a student, professor or other staff person on a college or university campus feels that their academic freedom or free speech rights have been infringed upon, what would you recommend that they do?
ROBERT SHIBLEY: Visit FIRE’s website at thefire.org, and submit a case or question. There’s a big button on the website where you can do that. We handle hundreds and hundreds of cases, and questions a year from people all over the place. And FIRE defends not just free speech and academic freedom, but also due process, so the right to fair trial (for example), religious liberty and freedom of conscience, more generally. So if students or faculty have questions, please visit the thefire.org. We may have answers on the website, and if not please submit a case or a question to us, and we will try to help.
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