Asking passers-by if they ‘like freedom and liberty’ deemed ‘too provocative’
A federal lawsuit was filed against Kellogg Community College Wednesday alleging students’ free speech and due process rights were violated. The lawsuit comes after an incident in the fall where student activists were arrested and jailed after refusing to stop handing out pocket Constitutions on the campus.
On Sept. 20, 2016, KCC students Brandon Withers, Michelle Gregoire and three students from other colleges were passing out pocket-size Constitutions and recruiting students to join the Young Americans for Liberty group at the Battle Creek campus. As they were doing it, school administrators told them they were violating a school solicitation policy.
Alliance Defending Freedom, a legal foundation that advocates for freedom of speech and religion, is representing Withers, Gregoire, and Young Americans for Liberty. KCC’s trustees, President Mark O’Connell, Chief of Public Safety Harold West, and Drew Hutchinson, manager of student life, are listed as defendants in the lawsuit, among others
In a video posted by the student publication Campus Reform, Hutchinson told the activists they needed to leave and that approaching other students and talking to them could “obstruct their ability to get an education.” According to a press release from the alliance, the group was not blocking any building entrances or walkways. (The full video can be viewed here.)
In the video, the student activists can be seen explaining to Hutchinson that they were not forcing students to talk to them and declined to leave. One of the other students in the group, Isaac Edikauskas, asked a student passing by if they liked freedom and liberty.
Hutchinson said in the video that this act broke the school’s student code of conduct because the question was too provocative and the questioner was not granted permission. Hutchinson added that he was trying to protect some of the students who grew up in Calhoun County, where KCC is located. He said they “are growing up on a farm, or they don’t have Wi-Fi, they don’t have internet, you know it’s a very different situation; they were brought up in a very different manner.”
KCC’s “Speech Permit Policy” states that the “[u]se of the College grounds by an individual or organization for solicitation is permitted only if the solicitation has been approved by Student Life.” Withers and Gregoire did not get approval before handing out pocket Constitutions, but the lawsuit alleges and other experts say the college’s policy violates the plaintiffs’ First Amendment right to free speech.
“By policy and practice, Kellogg Community College … claims the unchecked right to prohibit students from engaging in practically any constitutionally protected expression anywhere on campus unless they first obtain permission from KCC officials,” the lawsuit says. The alliance also says the plaintiffs’ Fourteenth Amendment rights to due process and equal protection under the law were also violated.
Campus police officers and West later showed up and told the activists if they did not leave, they would be detained and charged with trespassing.
“Essentially what we’re asking you to do is comply and leave and get the proper permits,” West said. “Yes, we do have civil rights, you have liberties, you have the First Amendment. However, when they start violating other people’s rights, that’s when it starts to run into a problem.”
Sometime after they declined again to leave, the student activists were arrested and booked on trespassing charges, which were later dropped by the prosecutor. The lawsuit alleges Gregoire, Edikauskas, and Nathan Berning, who was helping recruit for the group, were in jail for over seven hours.
Eric Greene, director of public information and marketing for the college, said in an email that it has yet to review the lawsuit but the college supports the U.S. Constitution.
“Kellogg Community College learned this week that an organization, the Alliance Defending Freedom, has announced it is filing a federal complaint against the College regarding a trespassing incident which occurred in September 2016,” he said. “The complaint itself has yet to be delivered to KCC; therefore, the details of the complaint have yet to be reviewed by legal counsel. The College, which supports the U.S. Constitution and takes seriously any allegation that one’s freedom of expression has been violated, will address this matter thoroughly.”
Dan Korobkin, deputy legal director for ACLU of Michigan, said KCC’s policy is unconstitutional.
“The college campus has long been an important hub for the exchange of ideas, and it is where some of our country’s most important movements for social change have flourished,” he said. “A public college cannot prohibit its students from handing out pocket Constitutions on a campus sidewalk. If it could, those pocket Constitutions wouldn’t be worth reading.”
Ari Cohn, a lawyer for the Foundation for Individual Rights in Education, which advocates for free speech on college campuses, also condemned KCC’s speech codes.
“The policies at issue in this case are breathtakingly broad and appear to prohibit students from engaging in any expressive activity on campus without the permission of college administrators,” he said. “And that kind of prior restraint is manifestly unconstitutional.”
Cohn said that FIRE has challenged policies similar to KCC’s in and out of court, yet many colleges “are still stubbornly clinging to their unconstitutional policies restricting expression on campus.”
He added that the policies allow KCC to deny permits based on subjective findings that the speech doesn’t support the college’s mission.
“Students’ free speech rights on campus under the First Amendment are not limited by what furthers the mission of the college,” Cohn added.
According to the lawsuit, in spring 2016, Gregoire was stopped from recruiting students by administrators and told she had to reserve a table in the student center. Gregoire complied and set up a registered table, but the college’s speech policy barred her from approaching students and she did not collect enough signatures to have Young Americans for Liberty officially recognized as a student group.
The lawsuit also claims KCC selectively enforces its solicitation policy. Withers previously observed an LGBT student group handing out literature in the student center and, despite administrators being aware, it was not restricted to a registered table.
KCC received $9,950,100 from state appropriations in 2015-16 and is slated to receive $10,087,500 in 2