News Release
For Immediate Release
Contact: Terry Pell 202-833-8400, ext. 113
E-mail: <pell@cir-usa.org>
September 25, 2003

Lawsuit challenges use of student conduct code to punish speech

September 25, 2003 − by CIR − in Press Releases − Comments Off on Lawsuit challenges use of student conduct code to punish speech

Washington, D.C. — A California Polytechnic student disciplined for posting a flier promoting a campus speech will ask a federal court on Thursday (June 25) to protect his and his fellow students’ constitutional right to free speech. The student, Steven Hinkle, was found guilty of “disruption” by the University after students called campus police to complain that the flier was “offensive.” The flier contained only the time and place of the lecture, a photo of the speaker — black conservative Mason Weaver — and the title of Weaver’s book. In the book, “It’s OK to Leave the Plantation,” Weaver argues that dependence on government puts many African-Americans in a situation similar to slavery.

The lawsuit will be filed in U.S. District Court in Los Angeles, naming the school’s officials, including Cal Poly President Warren Baker, as defendants. In addition to filing a complaint, Hinkle will request a temporary restraining order for immediate protection of his First Amendment rights. Hinkle is represented by the Center for Individual Rights (CIR) in Washington, D.C. and by Carol Sobel, a private practitioner and former ACLU attorney in Santa Monica, CA. The matter initially was investigated by the Foundation for Equal Rights in Education (FIRE), a Philadelphia-based civil liberties organization devoted to freedom of speech on college campuses.

The case, Hinkle v. Baker, arose when, on November 12, 2002, Steven Hinkle, a Caucasian student, attempted to post a flier on a public bulletin board in a student lounge at California Polytechnic State University in San Luis Obispo. A group of African-American students who later said they were holding a bible study meeting told Hinkle the poster was offensive and disrespectful and that he could not post it. Hinkle responded by asking, “How do you know it’s offensive? Can’t we talk about it?”

After one of the students said the police would be called if he didn’t leave, Hinkle departed without posting the flier. In January 2003, Cal Poly charged Hinkle with “disruption” of a “campus event” — the bible study — under California Code of Regulations, Title 5, Section 41301(d). Hinkle was subjected to a seven-hour judicial hearing and found guilty. Hinkle was then ordered to write letters of apology to the offended students (the wording of which was subject to prior approval by campus officials), and was told he risked penalties up to expulsion if he refused.

CIR President Terence Pell noted that the complaining students — as well as the Cal Poly administrator who prosecuted Hinkle — never claimed that he physically interrupted the purported bible study meeting. Instead, they pointed to the allegedly offensive nature of the flier and the distraction caused by the students’ emotional reaction to it. For example, the black student who called the police objected to the flier being “hate speech against us.” Pell said, “it is clear that the charge of disruption is simply a pretext for punishing Hinkle for his point of view. Hinkle was well within his rights to refuse to apologize.”

“Posting a flier on a public bulletin board announcing a talk on a topic of public importance is at the heart of the First Amendment,” said Pell. “The school cannot punish Hinkle simply because students find the topic controversial.”

Pell continued, “Diversity can’t mean one rule of conduct for one race and another rule for other races. True diversity means the same rule for all students, regardless of race. Higher education officials say racial preferences are necessary to promote diversity. Now they’re trying to punish students for engaging in exactly the sort of back-and-forth that racial diversity is supposed to promote.”

The case first surfaced last spring, when Steve Hinkle contacted FIRE, which began a campaign to publicly expose the violation of Hinkle’s constitutional right to free speech. When Cal Poly officials refused to comply with the First Amendment, FIRE referred the case to CIR and local counsel for litigation. FIRE Chief Executive Officer Thor Halvorssen noted that university officials routinely resort to speech and conduct codes to silence dissenting views. “Allowing some individuals to veto the protected expression of others is an unconscionable betrayal of Cal Poly’s moral and legal obligations,” said Halvorssen.

In the lawsuit to be filed on Thursday, Hinkle will ask the court to declare that Cal Poly’s ban on “disruption” is unconstitutionally vague and overbroad. In addition, he will seek an injunction prohibiting the University both from disciplining him for the flier incident and from banning or punishing similar speech or expression in the future. The requested injunction would order the University to expunge the allegations and conviction from Hinkle’s school records. Hinkle also seeks compensatory and punitive damages.

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