A Total Prohibition

Ohio University rushed through a policy that bans all indoor protests, but vehement campus criticism may lead to changes.

September 13, 2017
 
Baker University Center at Ohio University

As colleges nationwide wage free speech debates, Ohio University has taken a rare step by completely barring protests inside its buildings. But blistering backlash from campus groups may mean the policy is short-lived.

The policy change in part stems from a sit-in earlier this year where more than 70 protesters were arrested at one of the campus hubs, the Baker University Center.

Police had instructed the sit-in participants -- who numbered more than 150 and were rallying against President Trump’s immigration policies -- to leave. Those who refused were charged with criminal trespass.

Just a couple of months later, an Ohio municipal court judge found one student in the sit-in not guilty and questioned in his decision the consistency with which the university had applied its free expression policies.

The judge, Todd L. Grace, wrote that the Baker Center had previously served as a space for protests, in one case seemingly with tacit permission by university officials, who kept the building doors unlocked, even after the posted hours, during a rally held in response to the fatal shooting of a black man in Ferguson, Mo., in 2014.

Grace’s assessment prompted senior administrators to consider revisions, said David Descutner, Ohio’s interim executive vice president and provost. A university spokesman said that it was the university's practice to prohibit disruptive indoor demonstrations, but that had never been cemented into policy.

A policy rewrite was rushed, to the university’s detriment, Descutner said. It was enacted recently -- on an interim basis -- without senior leaders consulting with faculty or students, who delivered substantial critiques after the policy was published.

Ohio also did not follow its procedure of releasing written rationale to justify such a policy, Descutner said, which he chalked up to merely “oversight.”

“Unfortunately all we can do say we’re sorry on that one; it’s the process part of it, and we should have done better,” he said.

The university hurried to institute something before the academic year launched, but as officials drafted the new mandate, bloody protests erupted in Charlottesville, Va., where white supremacists stormed both the University of Virginia campus and the surrounding city. The events heightened Ohio’s sense of urgency to establish firm policy, Descutner said.

The policy is provisional, but still in effect, but the ban will likely be more narrowly focused after the university hears feedback from various campus groups. Initially, student and faculty representatives had until early October to give their thoughts -- that deadline will be extended to at least November, Descutner said.

He said that the university hopes to release more nuanced language, along with a rationale soon -- but said right now the current version of the policy will be enforced. Descutner said that one professor at a Faculty Senate meeting Monday questioned the policy’s scope, pointing out that even an unobtrusive protest, something as mild as someone quietly holding a sign, could be construed as breaching the university’s new rules.

Asked if such a protest would be broken up, Descutner said that the university’s goal is to “get through the next couple of weeks and hopefully put something better in place.”

The faculty provided “vigorous and reasonable” criticisms at the meeting Monday, Descutner said.

“Clearly faculty are dissatisfied, and they had a number of very thoughtful objections as it was written, and one of the things we’re trying to do is engage in shared governance around these important decisions,” he said.

The Ohio University chapter of the American Association of University Professors also released a statement listing concerns.

“As a university we need to ensure the maximum capacity for free expression, including public assembly and protest, while guaranteeing such actions do not impinge on the rights of others to speak or protest in public and to be secured against physical harm,” the statement reads. “The interim policy [that] has been enacted fails this test of ensuring maximal expression.”

Student leaders were also displeased with the indoor ban, said the Student Senate president, Landen Lama. As president, Lama is the liaison to administration and will collect students’ responses to the policy.

Lama described the Ohio student body as “very activist,” saying some have been arrested at both student senate and trustee board meetings.

Personally, Lama is “not a huge fan” of the policy, but he said he understands why it was enacted. He said he wanted a couple points of it clarified, such as which campus officials could break up protests.

“We all understand why it’s happening,” he said. “The world has come to this point where we have such polarizing opinions that we are restricting speech, and we understand why, but we’re still going to voice our opinions.”

Legal experts said in interviews that the policy, as it stands, is legally defensible, though will likely face court challenges if it goes unaltered.

Outdoor areas of public campuses are meant to be open for free expression, but universities maintain greater legal leeway in regulating indoor locations and preventing disruption to their core functions, said Azhar Majeed, vice president of policy reform for the Foundation for Individual Rights in Education, or FIRE.

FIRE was pleased that the new policy allowed for unscheduled protests outside, but Majeed said it was “disappointed” at the blanket ban indoors.

He said FIRE plans to contact the university and hopes some elements of the policy would potentially be reconsidered.

Colleges will likely start to define with more granularity where protests can and cannot occur, said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, a phenomenon he called “campus mapping.”

Complete prohibitions like Ohio’s tend to draw judicial scrutiny, he said. More specific policies tend to be more survivable.

The Supreme Court has not weighed in on how much campus space must be dedicated for free expression, Lake said.

“I think there are some open questions, and someone is going to test it,” he said.

The university has run up against legal troubles with free expression before.

With FIRE’s backing, an Ohio student, Isaac Smith, sued the university in 2014 after administrators instructed him to remove a shirt with a sexual double entendre. Smith was representing the group Students Defending Students, an offshoot of the Student Senate that assists students if they’re slapped with a conduct violation -- the T-shirt read “We get you off for free.”

The university settled the lawsuit in 2015 by revising some of its free speech practices.

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