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Feelings vs. Freedom
FIRE was pleased to see that on September 14, the Pioneer Times鈥攖he student newspaper at William Paterson University鈥covered our case there. Since we first exposed the ongoing injustice to student and employee Jihad Daniel over the summer, when the Pioneer Times was not being published, the incident didn鈥檛 really have a chance to permeate the campus until now. And permeating it apparently is: graduate student Robin Kavanagh has written a in response to the news story.
Kavanagh鈥檚 essential argument is that 鈥渢hose who have spoken out citing freedom of speech issues have missed one important piece of this puzzle.鈥 That piece, allegedly, is that Daniel is an employee of the university and therefore bound to abide by the Interim State of New Jersey Policy Prohibiting Discrimination, Harassment, or Hostile Environments in the Workplace, the Orwellian thought-control edict under which he was punished. That blatantly unconstitutional diktat outlaws 鈥渄erogatory鈥 or 鈥渄emeaning鈥 comments directed at members of a whole host of protected groups. By claiming that Daniel ought to abide by it, Kavanagh falls into the same trap as New Jersey Attorney General Peter Harvey, who upheld the university鈥檚 punishment.
The trap is a simple one. Harvey believes that New Jersey鈥檚 antidiscrimination regulation trumps the Constitution鈥攈e claimed in his letter to 果冻传媒app官方 that 鈥渟peech which violates a non-discrimination policy is not protected鈥 by the First Amendment. Unlike many of my FIREcolleagues, I am not a lawyer, but even I know that turns the law on its head. Laws and regulations have to jibe with the First Amendment, not vice versa. And the mere fact that Daniel is an employee does not change that. For one thing, he works at a university, a place ostensibly founded on the free and open exchange of ideas. For another, he is also a student, and the e-mail to which he responded was intended for the educational community in general, not just the IT department where he works.
Moreover, claiming primacy for New Jersey鈥檚 policy over the Constitution also gives a dangerously privileged position to feelings. After all, the feelings of Professor Arlene Holpp Scala, to whom Daniel sent the e-mail that got him in trouble, are what triggered the punishment. She felt 迟丑谤别补迟别苍别诲鈥攕丑别 wrote:
Mr. Daniel鈥檚 message to me sounds threatening and in violation of our University鈥檚 non-discrimination policy. I don鈥檛 want to feel threatened at my place of work when I send out announcements that address lesbian issues.
And here is Kavanagh鈥檚 comment:
If this is how she [Scala] felt, then the citation Daniel received was just. Even though it was a technical infraction of the codes of conduct, it was an infraction all the same, and Scala was simply excising her right to complain.
Got that? According to Kavanagh, it doesn鈥檛 matter that Daniel had no intention of threatening Scala. The mere fact that she felt something she didn鈥檛 like meant he should pay.
But the truth is that no one has a right not to feel something unpleasant. By any reasonable definition, Daniel鈥檚 email was not a threat. He didn鈥檛 hint that he was going to drop by her house with a torch. In fact, he didn鈥檛 say anything about her as a person.
But by Kavanagh and Harvey鈥檚 logic, the combination of hurt feelings and ridiculous rules takes precedence over the freedoms guaranteed by the First Amendment. That is a ridiculous argument鈥攂ut as FIRE鈥檚 cases show, it鈥檚 also unfortunately typical of contemporary American higher education.
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