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FIRE rates MSU in Top 12 Worst Colleges for Free Speech

(Photo credit: Kaleigh Robichaud)

When MSU student Kara Spencer emailed a group of faculty protesting a looming change in the academic calendar, she never thought it would spark a university investigation against her. She also never thought her name would still be in the national media three years later, or that her case would become an organization’s symbol of alleged stifling of first amendment rights on the MSU campus.

On Jan. 27, Foundation for Individual Rights in Education (FIRE) President Greg Lukianoff listed MSU in his “Top 12 Worst Colleges for Free Speech” blog on the Huffington Post website, citing Spencer’s altercation with the university and administrators’ following actions as grounds for its inclusion. FIRE is a national, non-profit watchdog organization whose mission is to “defend and sustain individual rights at America’s colleges and universities.” Since its posting, the entry has garnered over 450 comments and references in at least 21 other articles.

MSU professionals reject the validity of FIRE’s list, saying the list is backed with weak data and false claims.

The ranking is FIRE’s latest of several public blows against MSU over the last five years, highlighting a history of discontent from a civil liberties group who says policies here severely endanger students’ constitutional rights.

The Catalyst

It all started with an email. In 2008 Kara Spencer, a returning adult student who is now a senior, sent a message to a group of faculty voicing opposition to a proposal issued by the Office of the Provost. The proposal, which was later enacted, shortened the start of the academic calendar by shaving the number of days in welcome week.

“That was undertaken, many people felt, without an appropriate process,” Spencer said.

Spencer said she handpicked the email lists, which included deans, tenured faculty and faculty in leadership positions. The series of emails were broken up by department, and the total number made up about 5 percent of the faculty on campus, she said. Spencer said she used a personal email address and sent the messages from her personal computer. The next day she received a response email, but not the kind she expected. It was a representative from Academic Technology Services (ATS), notifying her they had opened a formal investigation against her. Immediately, she picked up the phone.

“I didn’t really apologize—I disagreed with him,” Spencer said. “He pointed out to me that under the current policy I would submit my email for review to the university, and it could then be sent out. My position was that’s censorship. If you’re reviewing it for content, it’s censorship.”

Spencer was eventually found guilty of violating MSU’s bulk email policy in a judicial hearing. FIRE, in addition to 12 other civil liberties groups, reacted by writing a letter to the university. The policy itself, they said, was “constitutionally suspect,” by putting “arbitrary limits” on political speech. However, MSU didn’t budge until the Electronic Freedom Foundation, one of the civil liberties groups who signed the letter, pursued a lawsuit. The university then erased the warning from her record and a revised, supposedly more defined version of the bulk email was enacted in May 2009.

But it wasn’t good enough. Not for Spencer, nor for FIRE. While the other watchdog groups who signed the letter appear to have faded away in the publicity battle against the university since the policy’s reform, FIRE is still vocal over two years later, continuing to use Spencer’s case as the focal point for their accusations against MSU— an institution they maintain is among the worst in the country for student rights.

A Public Indictment

FIRE’s grievances against MSU aren’t just about what happened in the past. Moreover, the organization says they are concerned about history repeating itself— a policy similar to the one that Spencer was found guilty under still lingers in university handbooks.

FIRE has used Spencer’s case as the basis of their campaign against MSU for the last three years, most recently citing it as reason for the university’s inclusion on their “Top 12 Worst College of Free Speech” list. While they haven’t seen a case from MSU since Spencer’s in 2008, FIRE’s complaints against MSU are almost entirely rooted in the university’s bulk email policy, which FIRE maintains is still intrusive after being revised in 2009. The policy defines bulk e-email as sending an identical message to more than 10 other internal users within a 48-hour period.

Will Creeley, Director of Legal and Public Advocacy for FIRE, said Spencer’s case illustrates that this policy can be, and has been, abused by administrators to silence free speech.

(Photo credit: Emily Lawler)

“Kara Spencer being issued a warning tells a lot of folks that universities are not shy about using what would appear to be benign policies to silence speech they don’t want to hear,” said Creeley.

Though Spencer was given the least severe punishment in the MSU judicial system, Creeley said it is still a severe violation of first amendment rights.

“It starts with the little abuses and balloons into something bigger,” he said.

But MSU administrators are holding their ground, maintaining that the bulk email policy does not infringe on first amendment rights.

“The policy does not infringe on free speech. In the age of social networking and the web, email is a remarkably inefficient means by which to express and spread ideas; people in the MSU community have much more effective alternatives available to them,” David Gift, Vice Provost of Libraries, Computing and Technology said in an email.

Gift said that ATS only investigates possible infringements of the bulk email policy when one of the recipients files a complaint. He challenges FIRE’s assertion in the Huffington Post article that Spencer’s email list was “carefully selected.”

“This is simply untrue,” Gift said. “One or more recipients complained about getting the message and the sender refused to stop sending the emails.”

But the answer may not be as clear-cut. Frank Ravitch, a professor at the MSU College of Law who specializes in first amendment law, said that while he sees eye to eye with FIRE in regard to Spencer’s case and the bulk-email policy, their rankings are another issue entirely—inane, indefensible and a disservice to the public.

“What this ranking seems to be saying is one incredibly stupid policy and one extremely bad application of that policy will put a university in the top 12, even as opposed to universities who have hundreds of instances a year that may not be as well publicized,” Ravitch said. “It’s one thing to say the university has a draconian email policy, but that doesn’t mean the university as a whole is bad with free speech.”

He challenges the fundamental principle of the “Top 12 Worst Colleges for Free Speech” list, including MSU’s placement on it. Ravitch said one isolated issue under one flawed policy is not enough to brand an entire institution as a continuous violator of first amendment rights.

“There’s so much speech on any university campus, you’ve got to look at it holistically,” Ravitch said.

Even so, he said that MSU still violated Spencer’s free speech rights in 2008.

“I think what they did to Kara Spencer is insanely wrong and unconstitutional,” Ravitch said. “It strikes me that by the vagueness of the email policy, there is a reason for FIRE to be concerned with the email policy at MSU.”

Joe Duffy, president of the MSU College Democrats, said his experience with first amendment rights on campus has been positive, even with web-related instances. He said his group has not faced speech interference even when directly attacking administrative positions.

“There have been instances where we’ve been critical of the administration and critical of institutions here on campus, but we haven’t seen any disciplinary consequences, or even the threat of those disciplinary consequences,” Duffy said.

Among other things, the MSU College Democrats organized two on-campus demonstrations last year, both of which ran without interference from university officials, Duffy said.

Ravitch said that to his knowledge MSU has a relatively good speech record compared to other universities. Without a trove of data collected from representatives on every campus, he said, labeling universities cannot be done accurately. He said that while he believes FIRE’s overall mission is beneficial, he doesn’t know of any other watchdog group that compiles a ranking.

“It’s sad that they’re playing fast and loose with information to defend free speech,” Ravitch said.

And indeed, FIRE says MSU’s place on their Red Alert list and inclusion on their “Top 12 Worst Colleges for Free Speech” list is entirely based on the language of the bulk email policy.

“When we’ve seen that policy utilized to punish students for their speech, we think that is certainly enough justification for ranking a school among the worst violators in the country,” Creeley said. “As far as a quantitative accounting of why one school is worse than another school, that doesn’t exist. All we know is that MSU has consistently refused to account for its mistakes.”

Creeley said that considering the organization’s mission and large volume of casework they receive each year, FIRE’s seven attorneys are experts in this particular area and are qualified to compose such a ranking. From their headquarters in downtown Philadelphia and office in New York City, FIRE’s 17-person staff receives hundreds of cases per year related to student rights on college campuses, he said.

He said the list was not intended to be a mass scientific equation; instead a display of particular schools designed to illustrate the broader problem of free speech abuse on college campuses.

One main difference between MSU and other universities FIRE evaluates, Creeley said, is that MSU has shown a distinct stubbornness to work with them. Nearly every other university will at least engage in an open dialogue, he said, while MSU has refused to discuss the matter any further.

Administrators from the Office of the Vice President for Student affairs and Services, who responded to FIRE’s allegations in the past, could not be reached for comment.

Gift said there has been no controversy, at least within the university, about the bulk email policy since Spencer’s case.

“No additional people from within the MSU community have expressed concern about the policy, and many have expressed appreciation for its intended effects,” Gift said.

FIRE released a report this year that rated 390 colleges and universities across the United States, identifying 261 “red light,” 107 “yellow light” and 12 “green light” schools. Ten others were identified, but exempt from evaluation. Red light schools signal that the university has at least one policy that restricts free speech in its language, while a yellow light schools signals at least one ambiguous policy that could be applied to squelch protected speech. Green light schools hold no written policies deemed as a threat to free speech. Of the 12 Michigan universities rated by FIRE, MSU is one of two yellow lights —all the rest are red. According to the report, FIRE chooses which schools to evaluate partially based on U.S. News and World Report rankings.

Turning Up The Volume

While MSU administrators have faced public pressure from FIRE since 2006, the group’s cries of injustice have intensified this year. Also in January, FIRE tried to rent electronic billboard space on 111 N. Harrision Rd., a stone’s throw from the Michigan Ave. intersection, to display an image of the MSU logo with “censored” rubber stamped over it. But the advertisement never saw the light of day because the private company who owns the space rejected FIRE’s offer, according to the FIRE website. On the eve of the fall 2010 semester, FIRE ran a full-page advertisement in U.S. News & World Report magazine that featured MSU on their Red Alert list—a wall of shame reserved for universities that display a “severe and ongoing disregard for the fundamental rights of their students and professors.” The advertisement, which ran next to the magazine’s top 100 university rankings, says the six schools on the list are the “worst of the worst” in the nation regarding campus liberties and cautions prospective students to “think twice” before applying. MSU was first placed on the Red Alert list in 2009 following FIRE’s involvement with Spencer’s email case. FIRE began contacting MSU in 2006, asking the university to remove a violence prevention program that they claimed infringed on protected speech under the first amendment.  MSU ended the program in 2007.

Other universities on the “Top 12 Worst Colleges for Free Speech” list have already buckled under the pressure. The day after the list was published, the Huffington Post put up a blog entry by Syracuse Vice Chancellor and Provost Eric F. Spina, who explained the university’s reasoning for charging a law student for “false attacks” in his blog. Syracuse dropped the charges against the student less than a week later. About two weeks after the list was published, University of Massachusetts Amherst loosened its policy on student rallies, though FIRE says it is still not up to their standards.

Meanwhile, MSU administrators have remained stoic and firm. While not responding directly to FIRE’s complaints publicly or privately, they maintain the part of the email policy FIRE questions does not violate free speech rights, signaling the university will not give in to the organization’s demands. The last contact the university made with FIRE was over a year ago when President Lou Anna K. Simon sent a letter refuting their allegations that the email policy snuffed students’ first amendment rights. MSU administrators have kept silent through the latest swell of criticisms—even though FIRE has made clear they will not quiet anytime soon.

Even after nearly three years of controversy surrounding her case, Spencer is still finishing up her degree at MSU, and is employed as Association Director for ASMSU in a spacious office on the third floor of the student services building. She said transferring to a different university wasn’t a solution in her eyes—she would rather work to make the institution better.

Overall, Spencer said she is satisfied with FIRE’s handling of her case, crediting them with leading the opposition that ultimately lead to the repeal of her punishment. While she doesn’t want to personally remain vocal about her case, she said she understands why FIRE uses it to contextualize the ongoing problem.

“My personal wish is to not appear in the press connected with this,” said Spencer. “But I understand why it continues to be brought up since the policy has not been corrected.”

Until the policy is amended, MSU will likely remain under FIRE’s scrutiny.

“The big problem is that the university has not corrected the specific policy used to cover Kara Spencer,” Creeley said. “That’s really it.”

2 Responses to “FIRE rates MSU in Top 12 Worst Colleges for Free Speech”

  1. Kara Spencer says:

    I would like to note two things:

    1) regarding Dave Gift’s comments…I DID NOT refuse to stop sending emails. In fact, after speaking with a rep from his office the day after the emails went out I did not send a single additional email. While I disagreed strongly with the reps interpretations of a guideline (which is what this was-not even a university policy) and believed that being forced to submit emails for approval equated to censorship, I ceased sending emails so that I could review the policy for myself. It should also be noted that, during our conversation, the rep from Dave Gift’s office charged with enforcing and investigating alleged violations could not tell me where I could find the policy/guideline he was referring to.

    2) Dave Gift’s personal opinion about the effectiveness of email is irrelevant to the discussion regarding First Amendment rights. It seems that the First Amendment would apply to all types of communication, but until that has been tested and precedent set entities like MSU are able to make it up as they go along. The point is that rights apply to all avenues of speech, whether individuals choose to protest/rally/twitter/facebook/publish/or email. It isn’t for the university to compartmentalize and select zones or approved mediums of speech. Until our laws catch up with our technology we will continue to have these types of abuses.

    3) It’s true that I would prefer this was no longer an issue and that I did not continue to be asked to address the case-but not because it faded away. It needs to become a non-issue because the university takes the initiative to correct a deeply flawed policy. The simple fact is that nothing has really changed regarding this policy at MSU. If an individual were to do the exact same thing…send a personal email to a personally compiled list from public records, from a private email, using their home computer…they could be charged by the university. That continues to not only be a violation of First Amendment rights, but an affront to the very thing an institution of higher learning professes to advance-an open exchange of ideas. I think it is important that we ask ourselves as a community of higher learning what policies best serve our purposes, what values do we hold sacrosanct?

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  1. […] David Gift, Vice Provost of Libraries, Computing and Technology at Michigan State University. In a recent article (which extensively quotes our own Will Creeley) by student reporter Ian Kullgren in the Michigan […]


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