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October 22, 2004

President Ann Weaver Hart
Office of the President
University of New Hampshire
201 Thompson Hall
Durham, New Hampshire 03824

URGENT

Sent via U.S. Mail and Facsimile (603-862-3060)

Dear President Hart,

As you can see from the list of our Directors and Board of Advisors, FIREunites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, due process, freedom of speech, and academic freedom on America’s college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and activities.

We are gravely concerned about the threat to free speech and due process posed by disciplinary actions against Timothy Garneau, a sophomore at the University of New Hampshire, based on fliers that he posted in his dormitory building.  As you know, UNH is a public university and therefore has an overarching legal obligation, in addition to its moral obligation, to preserve the First Amendment rights of its students.  UNH has kicked Garneau out of his home in the Stoke Hall dormitory (effectively sentencing him to spend the rest of his semester living out of his car) simply because he tried to amuse people in a way that was transformed into a serious offense by UNH officials.  This is an unconscionable offense against one of your own students and will not withstand either moral or legal scrutiny.

This is our understanding of the facts, according to university documents and materials provided by Timothy Garneau.  Mr. Garneau was annoyed with the high wait time for the elevators in his dormitory and blamed some students’ practice of always taking the elevator instead of the stairs—even when they were only going up one or two floors—for slowing down the elevators.  In response, on Friday, September 3, 2004, Garneau posted several fliers in the elevators of Stoke Hall.  These fliers included a picture of a woman in outdated workout gear and the following language:

9 out of 10 freshman girls gain 10 – 15 pounds.  But there is something you can do about it. If u live below the 6^th floor takes the stairs….Not only will u feel better about yourself but you will also be saving us time and wont be sore on the eyes. [sic]

Within less than two hours, a resident assistant had removed all of the fliers.  When Garneau was approached by the Resident Director and accused of hanging the fliers, he initially denied responsibility, apparently fearing that he would be punished harshly and embarrassed in front of his peers (a fear that was amply justified by the Resident Director’s subsequent actions).  Garneau did eventually admit to posting the flier and was charged with a number of outrageously inappropriate offenses including:

1b:       Acts of dishonesty: furnishing false information to university official/office

9j:        Violation of published policies: affirmative action

3d:       Harassment

16a:      Conduct which is disorderly, lewd

Astonishingly, after an October 8 hearing, Garneau was found guilty of all of these charges—simply for posting a short-lived flier.  The fact that Garneau went to great lengths to publicly apologize and atone for the alleged “offense” of hanging the posters did not seem to matter to UNH.  Garneau currently faces expulsion from university housing and disciplinary probation extended through May 30, 2006.  He is also required to meet with a counselor to discuss his “decisions, actions, and reflections” about the incident by November 1, 2004, to write a 3000-word reflection paper about the counseling session for submission to the Judicial and Mediation Programs Office by November 15, and to submit an apology letter to the residents of Stoke Hall in the Stoke Hall Newsletter by October 30. 

Garneau appealed these severe sanctions, but his appeal was denied and he is being forced to leave his dormitory by this Sunday, October 24.  His father will be coming to campus to help him move out of his room, but Garneau expects that he will be (in his own words) “living out of his bag” for at least the next month, as he does not feel that he can burden his parents with the expense of living elsewhere—an expense they cannot afford.

Forcing a student out of housing for posting a satirical flier is both outrageous and unlawful.  It is appalling that the University of New Hampshire would violate one of its own student’s moral, constitutional, and, indeed, human rights through these disciplinary actions.

Even highly offensive material, including profanity, is fully protected under the First Amendment.  We strongly encourage you to read the landmark U.S. Supreme Court cases Cohen v. California, 403 U.S. 15 (1971), and Hustler Magazine, Inc. et al. v. Jerry Falwell, 485 U.S. 46 (1988).  In Cohen v. California, the Court ruled that a Vietnam War protester’s jacket bearing the words “Fuck the Draft” was constitutionally protected expression even when worn in a courthouse.  Similarly, in Hustler Magazine v. Falwell, the Court ruled that the First Amendment protects even extraordinarily offensive satire and parody—in that case, a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse.  Taken together, these cases decisively and clearly protect offensive material, farce, profanity, and exaggeration, and, in fact, even recognize that the “right to offend” serves a vital societal function.  Garneau’s flier does not come close to approaching these levels of offense; its message is clearly and fully protected, and UNH may not attempt to re-characterize the posting of the flier as “harassment” in order to punish him.

In fact, over the past few years the misinterpretation of federal sexual harassment law by colleges and universities bent on chilling protected speech had become so rampant that on July 28, 2003, Assistant Secretary Gerald A. Reynolds of the U.S. Department of Education’s Office for Civil Rights (OCR) issued an open letter to all college and university presidents in the United States that clarified the relationship between harassment law, federal regulations, and the First Amendment (the letter is attached).  Secretary Reynolds stated:

[I]n addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR… Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications.  Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. [Emphasis added.]

The OCR letter also explains that in order to qualify as sexual harassment under the law, the pattern of harassment “must be sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student’s ability to participate in or benefit from an educational program.”  UNH’s actions against Garneau in this case make a mockery of federal law and dangerously trivialize real harassment.

FIRE requests that the University of New Hampshire immediately 1) affirm that Garneau’s opinions are fully protected under the First Amendment to the United States Constitution and that no device or contrivance will be used to circumvent those rights; 2) rescind all of the current sanctions and remove any record of this incident from Garneau’s file; and 3) guarantee that Garneau will endure no further punishment or retaliation for the expression of his constitutionally protected opinions on this or any other issue.

FIRE hopes that we can resolve this situation thoroughly and swiftly; however, we are categorically committed to using all of our resources in support of Timothy Garneau’s expressive rights and to seeing this process through to a just and moral conclusion.  Please spare the University of New Hampshire the embarrassment of fighting against the Bill of Rights, by which it is legally and morally bound.

As this is a matter of utmost urgency, we ask for a response to this letter by the end of the day on Tuesday, October 26, 2004.  I look forward to hearing from you.

Sincerely,

Greg Lukianoff
Director of Legal and Public Advocacy

cc:
Bruce Mallory, Provost and Executive VP for Academic Affairs, University of New Hampshire
Anne Lawing, Senior VP for Student Affairs, University of New Hampshire
Scott Chesney, Director of Residential Life, University of New Hampshire
Brad Williams, Stoke Hall Director, University of New Hampshire
Esther Tardy-Wolfe, Director of Judicial and Mediation Programs, University of New Hampshire
Jason Whitney, Judicial Officer, University of New Hampshire
David Cross, Director of UNH Counseling Center, University of New Hampshire
Pat Gormley, Special Assistant to the President for Affirmative Action, University of New Hampshire
Timothy Garneau