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August 21, 2007

Chancellor Una Mae Reck
Office of the Chancellor
Indiana University South Bend
Administration Building 250
1700 Mishawaka Avenue
P.O. Box 7111
South Bend, Indiana 46634-7111

Sent via U.S. Mail and Facsimile (574-520-4872)

Dear Chancellor Reck:

As you can see from our Directors and Board of Advisors, the Foundation for Individual Rights in Education (������ýapp�ٷ�) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of academic freedom, freedom of speech, due process, legal equality, and religious liberty on America’s college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned about the threat to free speech, freedom of the press, and freedom of conscience posed by Indiana University South Bend’s (IUSB’s) recent punishment of student Robert Francis. The arbitrary and unconstitutional determination that Francis’ comments to female members of the IUSB community during an interview for an article about “The Vagina Monologues” constituted “conduct that is lewd, indecent, or obscene” cannot stand at a public institution of higher learning.

This is our understanding of the facts; please inform us if we are in error. On February 13, Francis wrote his first article for The Preface on the IUSB V-Club’s production of “The Vagina Monologues.” In preparing for his second article on the play, Francis interviewed [name redacted], who performed in a portion of the play called “Hair,” and student [name redacted], who performed a segment entitled “Reclaiming Cunt.” After attending the February 14 performance of the play, Francis wrote his review, which he then e-mailed to [name redacted] on or about February 24. [Name redacted] replied to Francis’ e-mail only by correcting her quote in the article. According to [name redacted] statements at Francis’ hearing, she circulated Francis’ proposed article to other members of the V-Club.

[Name redacted] submitted a complaint to the Office of Judicial Affairs, dated February 13,[1] charging Francis with making comments to her “and other cast members” that [she] deemed “highly inappropriate, lewd, disrespectful, and sexually explicit in nature.” [She] stated that at the end of the interview, she felt “disrespected, misrepresented, misunderstood, and disregarded as a professional woman.”

In response to the article and complaints about Francis’ interviews with members of the V-Club, editor Jason Cytacki cut Francis’ review of the play from The Preface and fired Francis from his position as writer for the newspaper.

On March 20, Director of Judicial Affairs Charlotte Pfeifer called a meeting with Francis to discuss the allegations against him. Francis denied the allegations—including the claims that he discussed his “pornography novel” and that he said “a woman was encouraging rape by wearing a short skirt.” Francis also said that any statements that [the interviewee] perceived as offensive were acceptable in the context of her explanation of her role in the play—that of a woman describing the sensation and social implications of shaving her pubic hair. Francis also wrote in his defense that “at no time during the interview did she ever express any discomfort over the interview or topic.”

Based on [the actress's] complaint and the informal meeting with Francis, Pfeifer submitted an investigative report to Associate Vice Chancellor for Student Services Karen White on May 11. Pfeifer determined that Francis’ behavior violated two sections of IUSB’s Code of Student Rights, Responsibilities and Conduct:

5. Conduct that is lewd, indecent, or obscene.

19. Stalking or hazing of any kind whether the behavior is carried out verbally, physically, electronically, or in written form.

b. Hazing is any conduct that subjects another person, whether physically, mentally, emotionally, or psychologically, to anything that may endanger, abuse, degrade, or intimidate the person as a condition of association with a group or organization, regardless of the person’s consent or lack of consent.

Pfeifer’s recommended sanctions included a “one way listening session” with Francis’ accusers, because she felt that “Robert needs to hear from the women how his interactions with them made them feel;” a “processing session with Jim Hurst, Director of the Student Counseling Center;” and the requirement that Francis view “a movie/documentary assigned by [Pfeifer] and write a reflection paper.” On May 15, White upheld Pfeifer’s decision, writing in a letter to Francis, “IU South Bend will neither tolerate nor condone personal misconduct which causes any member of the University community to be uncomfortable to the point of degradation.”

Francis contested White’s assessment and appealed to the Student Government Association for help. On June 8, Francis appeared before a Hearing Commission, chaired by Associate Dean of the College of Liberal Arts and Sciences Douglas McMillen. During the hearing, V-Club members Smits and Robin Beck[2] testified against Francis. On June 13, McMillen wrote to Francis that the Hearing Commission had found him guilty of “Conduct that is lewd, indecent, or obscene,” but not of “Stalking or hazing.” McMillen wrote, “The Hearing Commission agreed that during your interview of [name redacted] on February 13 that you crossed the line from the educational discussion of the cultural issues of a woman shaving (or not) her vagina to sexually explicit and crass comments that were demeaning to women.” The Hearing Commission upheld all the sanctions that Pfeifer recommended on May 11. Subsequently, administrators cancelled the “one-way listening session” and Dr. Hurst deemed a “processing session” unnecessary. Francis has viewed the sensitivity training film of Pfeifer’s choosing and was assigned to write a response by Tuesday, August 21.

As a public institution funded by taxpayers, IUSB is required to protect students’ First Amendment rights—rights that include the freedom of speech, the freedom of the press, and the freedom of conscience. IUSB’s determination that Francis’ comments constituted “lewd, indecent, or obscene” conduct is an unconstitutional infringement on Francis’ freedom of speech and freedom of the press. In the absence of objective standards, administrators are left to determine which expression by which students can be categorized as actionable misconduct. While “obscenity” may be a legally defined term that does not warrant First Amendment protection, the definitions for “lewdness” or “indecency” are far more nebulous and may encompass, as in this case, a great deal of constitutionally protected expression.

IUSB is bound not only by a general expectation to treat students fairly, but by the First Amendment to the U.S. Constitution, under which Francis’ alleged comments are indeed protected. While the women Francis interviewed may have seen his line of conversation as tactless or insensitive, the Supreme Court stated in Texas v. Johnson, 491 U.S. 397, 414 (1989), that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Court has similarly defended expressions of “indecency,” writing in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” These and other similar cases protect the right to engage in shocking and potentially offensive speech, protecting both the language expressed in plays like “The Vagina Monologues” and Francis’ comments to members of the V-Club.

McMillen’s statement that Francis crossed an invisible line between an “educational discussion” of a woman shaving her vagina to “sexually explicit and crass” comments exemplifies both the irony of IUSB’s case against Francis and the arbitrary application of the prohibition of “lewd, indecent, or obscene” conduct. “The Vagina Monologues” in its entirety could be classified by some as “lewd,” “obscene,” or “indecent,” as the play lionizes crude language and sexually explicit material. The skit entitled “Reclaiming Cunt,” which involves an actress performing an orgasm on stage while the audience chants the word “cunt” repeatedly, is an example of the play’s objective of showcasing provocative sexual expression. It is a clear double standard for administrators to claim that such language is acceptable when performed on stage—or even when actresses in the play discuss this material—but that the same crass language transforms into actionable, unprotected speech when spoken by Francis.

As Francis wrote in his explanation to Pfeifer, his conversation with members of “The Vagina Monologues” cast may have been inappropriate under other circumstances, but he followed the lead of his interviewees. Francis wrote that during his interview with Smits, he sensed the license to pursue an unusual line of questioning because Smits had just discussed “in detail what the vagina feels like when it is shaved,” and they were “sitting approximately two feet away from a cast member selling chocolate vaginas.” “The Vagina Monologues” certainly lends itself to a more open discussion of sexuality than may be the norm on a college campus. It seems that IUSB is punishing Francis not for the language he used, but for the perceived chauvinist attitude behind that language. Prosecuting a student for his mindset—a truly invasive and draconian measure— constitutes viewpoint discrimination and may not stand at IUSB.

Finally, the sanctions against Francis constitute an insidious intrusion upon his fundamental right to freedom of conscience. A “processing session” with a university counselor is one of the most invasive and disturbing impositions upon Francis’ individual right to private conscience imaginable. Because Francis has neither exhibited nor been accused of mental instability, this psychological evaluation seeks to assess his political opinions, perhaps in an attempt to indoctrinate him into a more politically correct manner of interacting. Luckily, Dr. Hurst realized that a processing session was unnecessary in this case, sparing Francis the intrusion of having his thoughts evaluated. Nonetheless, it is profoundly disturbing that a public institution in the United States considered such a sanction appropriate at all. Similarly, the mandatory sensitivity training film has the purpose of espousing the “sensitive” views that the university prefers, in clear violation of students’ rights to believe whatever they wish. As dangerous as it is to dictate what citizens may and may not say, it is far worse to tell them what they must say and must believe. Such utter disregard for the autonomy and agency of others is the hallmark of totalitarianism and has no place at an institution of higher learning in any free society, let alone at a public university in the state of Indiana.

FIRE asks that IUSB please spare Robert Francis any further infringements upon his constitutional rights by overturning the finding that he violated the prohibition on “lewd, indecent, or obscene” conduct, striking any evidence of such charges from his record, and dropping the only remaining sanction—that Francis submit a response to the sensitivity training film. First Amendment rights and fundamental fairness on the IUSB campus demand no less. FIREhopes to resolve this matter amicably and swiftly; we are, however, prepared to use all of our resources to see this situation through to a just and moral conclusion.

Enclosed please find a signed waiver of Francis’ rights under the Family Educational Rights and Privacy Act (FERPA), allowing IUSB to discuss this matter with ������ýapp�ٷ�.

We request a response by Tuesday, September 4, 2007.

Sincerely,

Tara E. Sweeney
Senior Program Officer

cc:
Karen White, Interim Vice Chancellor for Student Affairs, IUSB
Lynn Williams, Dean, College of Liberal Arts and Sciences, IUSB
Douglas McMillen, Associate Dean, College of Liberal Arts and Sciences, IUSB
Charlotte Pfeifer, Director of Judicial Affairs, IUSB
Thomas Miller, Dean, Raclin School of the Arts, IUSB
Robert Francis

[1] Francis and Charles Norton from the Student Government Association claim that this complaint was submitted on March 5, after the V-Club saw and discussed Francis’ article, and that the complaint was backdated to February 13. If this assessment is incorrect, please inform us.

[2] Beck had not previously submitted a complaint about Francis and appeared at this hearing as a “surprise witness.”