Ohio University’s new interim “Freedom of Expression” policy likely will stir controversy on campus in the coming weeks.
The university policy, approved by OU President Duane Nellis in mid-August, bans protests and rallies inside of university buildings without protesters first reserving space through the university. It went into effect Sept. 5, although the university is accepting feedback for potential revisions.
OU announced the policy change on Friday (Sept. 8), with Faculty Senate set to have a discussion on the interim policy tonight (Monday) during its first meeting of the fall semester (7 p.m. in Walter 235).
According to the policy: “Demonstrations, rallies, public speech-making, picketing, sit-ins, marches, protests, and similar assemblies are not permitted in the interior spaces of university buildings.”
OU spokesperson Carly Leatherwood said Friday that in the past, “demonstrations and sit-ins inside buildings were considered to be disruptive to university operations, and our practice was typically to disperse such gatherings.”
“The new Freedom of Expression policy was adopted to lend consistency and predictability to the university’s handling of these events,” Leatherwood continued. “The policy affirms First Amendment rights to engage in expressive activities in outdoor spaces, and indoors by reservation.”
Last February, the OU Police arrested 70 students and other local activists who organized a sit-in protest on the fourth floor of Baker University Center in protest of U.S. President Donald Trump and university policies (which they argued did not adequately protect international students from Trump policies regarding immigration and the travel ban). The university argued in court that such a large group of people in the fourth-floor rotunda presented a “safety issue,” and that OU had offered alternative space for the protesters to gather.
However, Athens County Municipal Judge Todd Grace ruled that the university could not restrict people from engaging in “constitutionally protected speech and assembly” in the area because the university had previously allowed similar activities in the rotunda. He found the protesters not guilty.
According to the new policy, people can reserve space in university facilities for “any legal purpose, including to engage in constitutionally protected speech.” However, users must not “materially disrupt educational and research activities and other university operations, or interfere with the activities of other users of the facility.”
The policy defines that “disruption” by citing conduct that:
• “Substantially interferes with the ability of university employees to perform their university responsibilities.”
• “Substantially interferes with the ability of students to participate in academic, research or extracurricular activities, or to use university facilities.”
• “Substantially interferes with an authorized event or activity conducted in university facilities or outdoor spaces.”
• “Materially impedes the flow of pedestrian or vehicular traffic.”
• “Presents a reasonable risk of physical harm to individuals or damage to university property.”
The new “Freedom of Speech” policy was approved by OU President Duane Nellis on Aug. 17, and endorsed by Interim Vice President and Provost David Descutner (although it was initiated by university General Counsel John Biancamano), according to the policy’s revision history. The university has worked on revising the policy since the protest arrests last February (prior to Nellis coming on board).
OUTSIDE OF THE FEBRUARY protest in Baker Center, multiple other demonstrations have taken place inside university buildings in recent years. They include:
• About 30 students gathering inside Cutler Hall outside of former OU President Roderick McDavis’ office in October 2015, protesting the university’s decision to temporarily shutter the OU Survivor Advocacy Program. Nobody was arrested during the sit-in.
• Anti-tuition-hike protests during an OU Board of Trustees meeting in Walter Hall in January 2015. Three students were arrested.
• A small pro-Israel student protest in Student Senate chambers at Baker Center in September 2014. Four students were arrested after filibustering the meeting in the wake of then-Senate President Megan Marzec’s controversial anti-Israeli government “blood bucket challenge” video.
• More than 100 students protesting on Baker Center’s fourth floor rotunda in November 2014. The sit-in was in reaction to the non-indictment of Ferguson, Missouri police officer Darren Wilson in the killing of teen Michael Brown. University officials did not arrest any of the protesters, sent administrators to meet with the protesters, and allowed them to stay in Baker Center past the building’s closing time.
OU spokesperson Leatherwood confirmed Friday that the university had not previously codified a “freedom of expression” policy.
The university’s listed deadline for comments does not provide a lot of time for community feedback on the measure. According to the release, campus constituencies including the Faculty, Administrative, Classified, Student and Graduate Student senates, as well as the deans, chairs and directors of programs, the chief of police and the executive director of Baker Center, all have received the proposal and have been asked to provide feedback by the end of the day on Friday, Oct. 6.
The policy does include guidance for how the university will regulate its outdoor spaces, noting that the unscheduled use of outdoor spaces is permitted provided the space has not been reserved already.
However, that section does include the following:
“The university may provide a segregated space for protesters attending an event if, in the reasonable judgment of the university, that is necessary to preserve order and ensure the physical safety of all participants in the event.”
The university issued a release Friday about the “Freedom of Expression” policy.
“Through the adoption of a permanent policy, the university intends to memorialize our institution’s commitment to the free exchange of ideas and First Amendment principles while ensuring the safe operation of our campus,” the release argues.
Mike Brickner, senior policy adviser with the ACLU of Ohio, offered some thoughts on the new policy on Sunday. He noted that universities can regulate speech with reasonable limitations on “time, manner and location.”
“If a protest is interfering with the learning environment, university officials can regulate that,” Brickner noted. “At the same time, this policy could be applied rather broadly, and there could be some question as to what constitutes a protest, sit-in or other activity outlined here. Much of that may be left up to university officials and law enforcement to decide. This could lead to unequal treatment with officials breaking up speech they don’t like and allowing speech they do.”
Brickner added that universities should be “havens of free speech,” and said that officials should encourage students to exercise their rights “openly and often.”