Higher Education Law 3/29/2014 Case Scenario # 6 Theresa Brostowitz

1 Case Scenario # 6 Dear Mr. President: As requested, I have thoroughly considered the matter regarding The Knights of the KKK and their intended use of PVC facilities as well as the student organization, The Irreverent Society, and their requested use of the student union theater. I would now like to share with you my interpretation of the issues at hand, the legal implications in these two specific situations, and my recommendations for action. First, I respect and acknowledge that the content of both proposed films has great potential to be ethically challenging for many individuals, and should the viewings take place, the institution can reasonably assume that emotions on campus and in the larger community will run high. This is already apparent in the communications from the Trustees, community leaders, students, faculty, alumni, and veterans groups. This is indeed a delicate situation which exemplifies the tension between First Amendment rights and socially expected decorum and the role of the academic institution in navigating this tension. The issues before us remind me of OConnor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005) and the stalwart way the President of Washburn addressed the presence of a hotly debated piece of sculpted art, selected for display on campus, in a very professional and diplomatic manner. Even though this case was an establishment clause claim, the court highlighted that the campus, as opposed to a city park or public square, is a marketplace of ideas and is a place where contested issues may serve as an opportunity to further the educational mission and purpose of higher education. The President welcomed the disagreement as an opportunity for dialogue and intellectual stimulation. With regards to The Knights in particular, PVC has set a precedent of allowing community groups to use campus facilities for multiple purposes. Many of these groups have

2 previously used the facilities with the explicit purpose of furthering their cause (i.e. fundraisers). This has set a standard of allowing spaces on campus to be used as public fora. It is my concern that given the institutions history as a place where community groups can gather, denial of the use of space because of the nature of the groups beliefs and the content of the films they are showing could constitute viewpoint discrimination on the part of the institution and give The Knights a claim against us. The Knights are also contained to a room which gives community members the opportunity to engage or not with the content of their meeting and movie negating the concern that The Knights will have a captive audience. The point I would like you to consider is that the use of school property by a community organization can define that particular place, in this case the room that The Knights have scheduled in the Student Union Building, as a designated forum where all-comers may not be excluded. The Knights are therefore using a public forum space and limiting access to that public forum by requiring membership as a prerequisite of attending the speech activity. PVC can mandate that The Knights must allow full and unrestricted access to the public forum not contingent upon membership in their organization as a requirement of the facilities use (Kaplin & Lee, 2009). Should they refuse, they will not be permitted use of these public facilities based on the manner in which they are using the space. It is the states right "to preserve the property under its control for the use to which it is lawfully dedicated (Christian Legal Society v. Martinez). If The Knights agree to allowing unrestricted access to their meeting as a public forum, then congruent with the decision made in McGlone v. Bell, 681 F.3d 718 (2012), they must be allowed access to promote and further their ideas on campus. Concerning The Irreverent Society, the movie theater on the schools property is public property and has been traditionally treated as a public forum, and as such, the age restriction, while perhaps morally obligatory, is also in violation of the use of a public forum. Movie theaters

3 using an age limit are privately owned and therefore not considered public fora. The institution does not have the same liberties. Also given that the movie has been found to fail the obscenity requirements, the institution cannot prohibit The Irreverent Societys viewing. Similar to The Knights, should The Irreverent Society wish to use school property for a community event, they too must observe the all-comers policy. With regards to your desire to see the official recognition removed from the Irreverent Society, unless you can definitively cite violation of their group contract with the institution, I would council against it. Given PVCs obligation as a government entity, this is the course of action I would recommend. I hope I am correct in my assessment that first and foremost, you and our esteemed Trustees hold the importance of critical discourse regarding and deep examination of social topics historical and modern, contested and uncontested, as the highest priority of todays institutions of higher education in furthering an intellectually stimulated and informed society. Given that our deepest learning most often comes from our deepest discomfort, it is my belief that Pleasant Vale College is currently positioned to provide a critical opportunity for reflection, dialogue, and growth as well as a showcase of ethical leadership in moving our constituents through the discomfort provided by these challenging topics and protecting the First Amendment rights of our students and community members. I invite you to consider the merits of transparency regarding the institutions official decision and opinions on the issue as a further commitment to educating our students and the larger community as to the delicate balance between individual constitutional rights and institutional freedoms. Sincerely, Vice President for Student Affairs