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WMU Can鈥檛 Spin Away the Facts: It Has to Pay Damages and Reform Its Speech Codes
plaintiff Nola Wiersma has one regret about settling her First Amendment lawsuit with Western Michigan University: She didn鈥檛 get an apology from the university for violating her constitutional rights.
We generally encourage plaintiffs to let university defendants save face and savor the fact that they have restored free expression to their campuses, vindicating their rights and those of their fellow students. In short, we advise being gracious in victory. In the case of WMU, however, that is easier said than done. If the university didn鈥檛 owe Nola and her co-plaintiffs Kestrel Peace (named as Jessica Clark in the complaint) and the Kalamazoo Peace Center an apology for its handling of the Boots Riley appearance that triggered the lawsuit (and it did), it certainly owes them one now for its churlish and misleading spin on the settlement agreement placed on record with the court on April 30, 2015.
In an , WMU spokeswoman Cheryl Roland is quoted as saying that the university agreed to pay $35,000 in attorneys鈥 fees to settle the case 鈥渕ostly to come to a quick resolution鈥 and that 鈥渢he university will not pay any damages in the case.鈥
Ms. Roland needs to double-check her facts. WMU is legally obligated to cut a check for $35,000 to Davis Wright Tremaine by May 15. WMU requested that it only be required to write one check and asked Davis Wright Tremaine to pass on the damages portion鈥$5,000鈥攖o the plaintiffs. In fact, WMU agreed to pay $2,000 more if it could combine the payments. Perhaps WMU thought it could disguise the fact it had to pay damages by writing a single check. But it can鈥檛 get around the fact that the plaintiffs will receive $5,000 to compensate them for the violation of their First Amendment rights, regardless of how its spokeswoman wants to describe the transaction.
But Ms. Roland was not done. She ended the interview with this comment:
鈥淲e don't think we did anything wrong,鈥 Roland said. 鈥淲e鈥檝e had an opportunity to fine tune our procedures a bit but I believe that would have happened anyway without a lawsuit. We鈥檙e just ready to move forward.鈥
To put it mildly, FIREbegs to differ.
When a public university maintains and enforces speech codes to censor student expression, as WMU did, that鈥檚 not just 鈥渨rong;鈥 it鈥檚 unconstitutional. If Roland and other WMU administrators truly believe that there鈥檚 nothing 鈥渨rong鈥 with violating the First Amendment, FIRErecommends they sit in on a few of their university鈥檚 classes next year, starting with , , and .
And WMU鈥檚 procedures weren鈥檛 just 鈥渇ine-tuned.鈥 Anyone familiar with 果冻传媒app官方鈥檚 work defending student and faculty rights knows we don鈥檛 settle for 鈥渇ine-tuning鈥 wholly unconstitutional speech policies. When we support student organizations like the Kalamazoo Peace Center in filing lawsuits to vindicate their constitutional rights, we secure wholesale revisions and full compliance with the First Amendment. After all, the law is on our side; that 鈥渕ost of the time when they [果冻传媒app官方] take on a campus they're right."
The settlement will be public by May 15, and then people can judge for themselves. In the meantime, it鈥檚 worth noting that the settlement discussions on April 30 started at 2:16 p.m. and ended at 7:34 p.m. 鈥淢inor鈥 policy changes don't typically take more than five hours of negotiations to hammer out, but multiple policies requiring substantial revisions might.
Here鈥檚 a quick overview of the core changes agreed to in the settlement:
- WMU now has a written policy spelling out when security fees may be required and on what grounds鈥攄epriving administrators of the unbounded discretion they abused in the Boots Riley debacle.
- FIRE and the community can now express themselves in outdoor common areas on campus without first having to get official permission to speak.
- WMU must regulate the use of public indoor spaces based only on explicit, viewpoint-neutral criteria rather than concerns about the content of the event.
- The flyer/poster policy now expressly allows leafleting and handing out flyers on campus common areas without advance permission, and flyers cannot be rejected simply for failing to adhere to an administrator鈥檚 ambiguous 鈥渟tandards of good taste.鈥
Are these the kind of changes that 鈥渨ould have happened anyway鈥? Of course not.
We鈥檝e been waiting for 15 years for universities to wake up and decide for themselves (admittedly, with prodding from 果冻传媒app官方) that policies that curb free expression on campus should be abolished. Until that moment of enlightenment comes, 果冻传媒app官方鈥檚 Stand Up For Speech Litigation Project will continue to work with students and faculty to file lawsuits to compel public colleges and universities to bring their policies into compliance with the First Amendment. We鈥檒l keep winning, too. Despite the university鈥檚 spin, our results speak for themselves.
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