Denial and Deceit: How a University Censors Ideas It Doesn't Like
Part One
Making up the Rules
Have patience. It will take you a while to read through all of the correspondance. But it's worth it. What you will see is a mad scramble to come up with a reason, any reason, to prevent another campus distribution of The Alabama Observer. You would think a university would encourage, or at least not try to prevent, the exchange of ideas, especially controversial ones. Think again. In our opinion, this form of censorship -- hidden censorship masquerading as beaurocratic regulation -- is even more dangerous than the official speech codes universities attempt to impose.
In early September, Mr. Bill May called Dr. David Beito, to tell him that a "mistake" had been made and that copies of The Alabama Observer would never been sent through campus mail again. May claimed he had received two complaints, naming only one -- Mr. Don Lawrence, Director of Payroll. Dr. Beito then tried to reach Mr. Lawrence -- not once, but repeatedly -- to find out why he had complained. This is where the story begins.
To: dlawrenc@bama.ua.edu; From: David Beito, Sept. 7, 2003
Dear Mr. Lawrence: I am greatly concerned about a call I just received from Bill May. He informed me that your office has decided not to distribute future issues of the Alabama Observer to all faculty and will now require regular postage to be paid. I am rather puzzled because of the long-standing precedent for this mailing method. For many years, the campus mail service has routinely used this method to distribute Alabama Academe, the newspaper of the the Alabama affiliate of the American Association of University of Professors, to faculty. It has not charged extra postage for performing this service.
Like the Alabama Scholars Association the AAUP is a non-profit organization with no connection to the university. Like the ASA, it has members among UA faculty and a campus chapter. Do you now intend to start a new policy of charging extra postage for the Alabama Academe as well as the Alabama Observer? If you do not, please explain this apparent double standard.
Second, I have been informed that the mailroom has distributed flyers for the Black Faculty and Staff Association (another non-profit organization) to the "official" faculty and administrator list. The Association is not officially connected with the university, nor is it registered as an official organization. Do you intend to end this >>practice? If not, please explain apparent this double standard.
As an aside, let me also point out that Auburn University and the University of South Alabama both have policies of routinely distributing the Alabama Observer in exactly the same way they have always handled distribution of Alabama Academe. In other words, they do not charge regular postage to either organization and distribute their newspapers through the university mail. I will be happy to provide more details if you need them.
Finally, I would greatly appreciate it if you could tell me if who first suggested this apparent sudden change in long-standing policy?
I hope that by your answers to these questions we can clear up any misunderstanding. Thank you in advance for your cooperation.
Sincerely, David T. Beito, President, Alabama Scholars Association
On September 10, Mr. May, who had received a copy of Beito's letter to Lawrence, responded that he alone was in charge of granting approvals, and that we should never have approached Mr. Lawrence. As we will see, May soon contradicted himself and said that he did not grant approvals.
From: "Bill May"
Dr. Beito, I did not tell you that Mr. Lawrence's office declined to distribute further issues of the Alabama Observer. I stated that he was one of the people who called to ask who had approved use of the University's database for distribution. His office no longer approves mailings, that's the responsibility of my office - which I also told you. Just wanted to make this point clear.
I have not yet concluded research on the Academe, but will get back to >>you per our conversation.
Respectfully yours, Bill May
Almost two weeks had now passed since May, claiming approval authority, had called Dr. Beito to tell him that he would not be permitted to send out The Alabama Observer. In that two weeks, Beito had repeatedly asked May to send him a copy of the regulations he used in issuing the denial. Finally, on September 16, Dr. Beito wrote to May and told him that he (Beito) would come to his office tomorrow and pick up the regulations in person.
From: Beito [mailto:Beito@alabamascholars.org] >>Sent: Tuesday, September 16, 2003 3:17 PM To: Bill May
Dear Bill: I will come to your office tomorrow afternoon to pick up a copy of the regulations that were used to jusify the policy regarding future ASA mailings. Rather than trouble you to give them to us in person, you can just leave them with your secretary at the front desk if you wish.
Of course, if you prefer, you can sent me a copy of the regulations via email.
Thank you in advance for your help. David
The same day, May said he would supply the regulations.
From: "Bill May"
Dr. Beito, The regulations are in our business office in Barnwell. You may pick up at your convenience.
Bill
However, the regulations May provided turned out to be nothing that the official postal regulations concerning bulk mailing. There was no reference to how, or in what way, the University determines if a mailing is from a "bona fide" organization and therefore exempt from second class postage. How had May made this decision? Keep in mind that it was this decision that May claimed barred The Alabama Observer. Dr. Beito asked May to explain this decision by Friday, noting that three weeks had passed since May had first issued his denial.
From: Beito [mailto:Beito@alabamascholars.org] Sent: Wednesday, September 24, 2003 2:43 PM To: Bill May
Dear Bill: I had a chance to look through the regulations you kindly provided but still have some questions. In particular, I would like to get clarification on the following "This suspension does not cover the letters of faculty members, students, or organizations other than bona fide student or faculty organizations of >the carrying college or university." (page 17)
First, on what basis did you determine, as you apparently have, that the UA chapter of the ASA (which sent out the mailing of the Alabama Observer) is disqualfied from the status of a "bonafide student or faculty organization?"
Second, will your office now apply the same rule on campus mailings to the following: the Black Faculty and Staff Association, the Coalition for Diversity and Inclusiveness, and the UA chapter of the Alabama Association of University Professors. I am sure that officials in all those organizations would appreciate a clear answer to that question. This question arises because the UA chapter of the ASAS is just as much a "bona fide....faculty organization" as these other groups. Like them, it is a non-profit organization or UA faculty, has the authority to rent rooms on campus, and has historically used the campus mail service to send flyers without paying second class rates.
I am particularly interested in finding out the results of your research on the Alabama Academe, the newsletter of the Alabama Association of University Professors. For many years, the Alabama Academe has been >exempt from second class postal rates and has been distributed by mail services to all faculty. Will the Alabama Academe now be subject to second class rates?
As I informed you earlier, Professor Maarten Ultee, who is the campus head of the AAUP chapter at UA can answer any questions. He can be reached at 348-1851 or at multee@bama.ua.edu.
It has been about two weeks since you stated that you were doing >"research on the Alabama Academe" and "will get back to you per our conversation." For this reason, I would appreciate an answer to these questions by Friday.
I am sure you agree with me that these issues be directly addressed to avoid the impression that your office is unfairly targeting one, and only one, organization.
Thank you in advance for your help.
Sincerely, David T. Beito, President, Alabama Scholars Association
May now says that he cannot provide or explain his decision to bar The Alabama Observer by Friday, three weeks after he claimed to make the decision.
From: "Bill May"
David, Not sure I can make the Friday deadline. Left a message for Dr. Ultee, no reply as of yet. I was unable to discover any useful informationregarding on-campus distribution of the Academe from Campus Mail or Bulk Mail. No one can remember processing it in the past.
Dr. Beito write back that almost two weeks have passed since he (Beito) gave May the name and number of Professor Ultee, editor of Alabama Academe, the official publication of the American Association of University Professors. Our argument since the beginning had been that campus mail had been distributing Alabama Academe for years, and therefore it could not deny us without being inconsistent.
From: "Beito"
Bill: I gave Professor Ultee's name to you two weeks ago. It seems to me that your office would been eager to have throughly researched all the implications *before* it acted in the first place so as to make sure that it is not acting arbitrarily and selectively. I also would appreciate answers to the questions about whether you have imposed the same standard on the Black Faculty and Staff Association and the Coalition of Diversity and Inclusiveness.
Thank you. David T. Beito
The following note, from Nuckolls to May, repeats the above and expresses frustration that almost three weeks have passed and May can still not provide us with any explanation or justification for denying our right to distribute The Alabama Observer.
From: "nuckolls"
Dear Mr. May, I have read your response to my colleague, David Beito, concerning your decision not to permit distribution of THE ALABAMA OBSERVER through campus mail at the University of Alabama. We have asked you to specify exactly what regulation you used to make your decision. We informed you that the Alabama Academe is distributed every semester to all faculty, and has been for years. We requested you to tell us why a regulation (which you have so far not even identified) is imposed on us, but not on the American Association of University Professors or other recognized campus organizations that distribute their materials through campus mail.
So far we have received no reply to these questions, even though you said two weeks ago that you would provide them. We believe that the 20,000 state-wide readers of our publication may view your decision as a deliberate targeting of one paper. They may also consider it a violation of the free speech and equal protection provisions of the Constitution, not to mention of the University's obligation to honor the Bill of Rights in everything it does.
In any case,the next issue of THE ALABAMA OBSERVER will feature, on the front page, a news report on your decision, in which our correspondence with you (or lack of it) will be described. We believe the people have a right to know, and that you have a right to know that we intend to tell them. However, it is entirely up to you at this point how the report is written, and what conclusions the readership will draw.
I hope you will respond to our inquiries, and even more importantly, that you will clearly and openly demonstrate that your office treats all campus non-profit organizations equally.
Your Sincerely, Charles W. Nuckolls Editor THE ALABAMA OBSERVER
Part Two
Exchanges With Faculty Senate Officers
The time is about two weeks after our initial attempt to find out who made the decision to bar our newspaper and how they made the decision. Dr. Beito write to John Mason, President of the Faculty Senate, to make a formal complaint. After some initial difficulty, as you will see, both President Mason and VP Winston agreed that the ASA has been singled out for special harassment, using regulations that in fact do not exist. We appreciate their support -- so far -- although a lot will depend on how they handle the Provost's new "regulations" at the next meeting of the Planning and Operations Committee.
From: Beito [mailto:Beito@alabamascholars.org] Sent: Fri 9/26/2003 12:02 PM To: Mason, John
Dear John: I greatly appreciate your offer to take this to the Steering Committee. Shown below is our full correspondence with Mr. Bill May at University Printing. Here is a brief summary of the situation. As a faculty organization, the UA chapter of the Alabama Scholars Association has had an account with University Printing and Campus Mail for almost a year.
We have used this account several times to disseminate literature to all faculty and administrative staff to advertise various events, including the speeches of Autherine Foster, Robert Woodson, and Peter Kirsanow. As a faculty organization, we paid the standard charge (roughly 30 dollars total) to distribute fliers to all faculty and academic staff, about 2,000 people. Other organizations have used the same method to distribute their literature. For example, the Alabama Association of University of Professors has sent its newsletter, Alabama Academe (which is similar in size and format to the Alabama Observer), through the campus mail for many years at the same low rate. I believe that the Black Faculty and Staff Association has used this method to distribute fliers and possibly the Coalition for Diversity and Inclusiveness.
A little more than two weeks ago Mr. Bill May of University Printing called to inform me that his office made a "mistake" when it sent out the Alabama Observer at the low rate. He said that in the future it will charge us full second class rates. He has refused to say whether his office will impose the same policy on the Alabama Association of Scholars, the Black Faculty and Staff Association, and Coalition for Diversity and Inclusiveness. The following correspondence will provide more details.
We asked Mr. May to respond by Friday (nothing yet) with a response to our questions. If he does, I will forward it to you. I will also take this case to the ombudspersons.
Best, David
Mason sends this note to members of the Faculty Senate steering committee, grudgingly acknowledging that "regardless of your opinion of David [Beito] and the ASA," an important principle -- freedom of speech -- is being violated by the University in its harassment of the ASA. Beito and Nuckolls appreciate Mason's stand.
From: "Mason, John"
Please take a look at David Beito's e-mail to me. Regardless of your opinion of David or ASA, he brings up a very valid issue. I would hate for this Administration to establish a precedent of charging different campus mail rates to different organizations based on how the Administration likes or dislikes an organization's message. In my opinion, only objective criteria should be used to determine an organization's campus mail rate. To do otherwise could have the potential of suppressing varied opinions that might be expressed by faculty and their organizations.
Thus, I believe that this issue transcends David and ASA. Is this an issue that I should bring to the next Steering Committee meeting or should I assign it to a Senate committee? If the latter, which one do you suggest? I await your comments.
John
Mathew Winston, Vice-President of the Faculty Senate, writes back to Mason and the Steering Committee on September 29th. He makes a number of statements below that are factually in error, but to his credit, when we point this out (below) he acknowledges the mistakes. The problem is that the Senate leadership is not inclined to support the ASA, and for reasons that are understandable: last Spring we pointed out (in print) that elections to the leadership were about as democratic as elections to the Soviet Poliburo. But that's another story.
From: mwinston@bama.ua.edu Date: Mon, 29 Sep 2003 09:41:07 -0500
1. I spoke with Bill May, the Director of University Printing. He told me that they distribute campus mail through a data base that comes from Don Lawrence, the Director of Payroll at Human Resources.
2. I spoke with Mr. Lawrence, which no one from the ASA had done. He explained that certain departmental and university mailings had been sent out for some time and so no longer needed reapproval from his office every year. Apparently someone in the mailroom mistakenly placed "The Alabama Observer" in that category the first time it was sent, and so the ASA was charged the minimal $30 rate, until someone noticed that it was not on any such list.
3. David Beito would need to speak with Don Lawrence to get the >appropriate approval. > >4. However, as Bill May pointed out to me, the information box on page 3 of "The Alabama Observer" clearly states: "Second class postage >paid at Tuscaloosa, Alabama." My understanding is that if you say that >and want a postal service to deliver, you have to pay the second class postage.
I recognize that there is still room for conspiracy theory. I do not know how or why Bill May happened to notice that "The Alabama Observer" was not on the approved list. That's not an area that I >hink the Planning and Operations Committee ought to get into.
Mathew Winston
Dr. Beito responds, noting that Winston has made a number of errors in his report.
From: "Beito"
1. Professor Winston apparently did not read bother to read the email paper trail which I sent to both John Mason and Wythe Holt. If he will scroll to the bottom, he will find that Don Lawrence was the very first person I contacted via email. Mr. Lawrence never bothered to respond. I am still waiting. Moreover, Mr. May even wrote an email to me (next to the bottom) which upbraided me for writing to Mr. Lawrence and affirmed that he (Mr. May) had full "responsibility" in this matter. Who is in charge here?
2. Mr. Lawrence's comments about page 3 of the Alabama Observer are entirely new to me. Mr. May's intial argument was entirely different. Instead, he said that ASA had to pay second class rates because it was not a part of the University and/or was not not a bona fide faculty organization. Nevertheless, let us assume that page 3 was indeed the problem. To correct it, the offending statements will be dropped from all future issues of the Alabama Observer. Will Professor Winston please ask Mr. Lawrence (who has not responded to my emails) whether such a change will mean that future issues of the Alabama Observer will be exempted from second class rates?
4. One of my key questions (not even mentioned by Professor Winston) concerned the exemption of second-class mailing charges for the Alabama Academe, published by the Alabama Association of University Professors. I am forwarding a copy of this correspondence to Maarten Ultee, the campus representative of the Alabama Association of University Professors. I am sure that Professor Ultee would like to know whether the Alabama Academe will continue to receive its traditional exemption from second class rates. Will he too have to get "approval" from the illusive Don Lawrence in order to continue this practice? Could Professor Winston please look into this?
Finally, will the ASA be allowed to send fliers (not just the Alabama Observer) through University mail at the low 30 dollar rate as it has done for the past year for several events? Again, I ask Professor Winston to investigate due to a lack of response by Mr. Lawrence and the constantly shifting nature of rationales for this apparent double standard. I am sure that similar organizations such as the Coalition for Diversity and Inclusiveness and the Black Faculty and Staff Associaton would appreciate answers to this question since they too could suffer adversely if forced to pay higher prices for any flyers they sent through campus mail.
The ASA went to the Faculty Senate Steering Committee in good faith and assumed that it would conduct a thorough investigation into questions which are not only important for the ASA but to other faculty and staff organizations. We only asked for this investigation after an offer by Professor Mason. We assumed that the Steering Committee would take seriously consider our claims of a double standard. Were we wrong?
Sincerely, David T. Beito
Wythe Holt, Professor of Law, comes to the defense of the ASA in this letter to John Mason, President of the Senate. Professor Holt does not agree with many positions taken by the ASA, but here he demonstrates that he can stand on principle when he sees the free speech rights of his colleagues being violated. We appreciate his remarks.
From: Wythe W Holt Jr. [mailto:wholt@law.ua.edu] Sent: Sun 9/28/2003 10:40 AM To: Mason, John
I agree with you and David that this deserves investigation. Too many "mistakes" are actually political censorship. (CDI has not, to my knowledge, used this particular method of information dissemination, but I am forwarding your email to Rob Ingram, our Secretary, who will know more of the details.) I think it should be immediately assigned to a committee, and I >would suggest P&O.
In solidarity, Wythe
John Mason, President of the Faculty Senate, responds to Holt in this message to members of the Steering Committee:
From: "Mason, John"
Mathew and Mohammed,
I agree with Wythe that this matter should be investigated by the Planning & Operations Committee and reported to the Steering Committee at your earliest convenience.
As I mentioned in a previous e-mail, I am very much concerned about the possible establishment of a precedent whereby those organizations whose message is disliked by the Administration receive punitive retribution. I also understand that this may not be the case. However, this situation does require investigation in order for the Faculty Senate and its Steering Committee to understand the ramifications of what has been dealt to the Alabama Observer. Also, if the requirement is that an organization must be recognized by the University prior to receiving favorable intracampus mail privileges, then we need to know what are the requirements/procedures for an organization to be recognized by the University.
Please let me know if you have any questions regarding what I have assigned to Planning and Operations.
John
Dr. Beito here writes to John Mason, President of the Faculty Senate, and reviews the situation to date.
From: "Beito"
John: In answer to your question, to my knowledge there is no procedure exists for the UA to "recognize" *any faculty group.* About a year ago, I investigated this issue with the intention of registering a UA ASA chapter, headed by Scott Hestevold. I was told by the folks at Ferguson that no such procedure exists. I also investigated the question of why the Black Faculty and Staff Association gained the right to reserve rooms on campus for several years under its own name. Nobody seemed to know for sure. It seems that practice was very informally established long ago.
Using this precedent, the ASA (actually the UA chapter of the ASA) was allowed to register rooms. It has reserved rooms under this name several times including for the speech by Robert Woodson, Peter Kirsanow, and Autherine Foster. Again, using the precedent long since established by the Alabama Association of University Professors, we also began to send our literature through the campus mail without being subject to second class rates.
Most recently, we sent the Alabama Observer through the mail, again, building on the precedent established long ago by Alabama Academe. We did this for several events and had problem at all until now. I suspect, of course, that Mr. May is merely following orders. It would be interesting to find out from whence those orders came.
Best, David
On the same day, Mathew Winston responds to David Beito's message noting serious errors in his earlier allegations against the ASA. To his credit, Winston now recognizes that there is a problem and that the ASA is being singled out for harassment by the University administration. The letter below is to Mr. Don Lawrence, who has never responded in writing to any request or communication.
From: mwinston@bama.ua.edu Date: Mon, 29 Sep 2003 15:37:42 -0500 Mr. Don Lawrence Payroll Manager Human Resources
Dear Mr. Lawrence: Thank you for your prompt and thorough response to my telephone call this morning. I thought matters were clear. In light of the e-mails below, however, it appears that there was -- at best -- confusion between you, Bill May, and Professors Nuckolls and Beito, the officers of the Alabama Scholars Association. Speaking both personally and in my capacity as vice president of the Faculty Senate, I assert (and I believe that a majority of the Faculty Senate Steering Committee agrees) that the Alabama Scholars Association is a legitimate faculty group whose publication should be entitled to campus access on the same terms as is granted to similar University of Alabama organizations. Insofar as the line on page three of The Alabama Observer about "second class postage" is a problem, it will be omitted from all future issues.
If it appears that The Alabama Observer has been singled out because of its political stance, as its editors suspect, then this would seem to be a breach of academic freedom and a matter of serious concern to the Faculty Senate. I hope to hear back from you soon.
Sincerely, Mathew Winston
The following is a note from Winston, VP of the Faculty Senate, to David Beito and Charles Nuckolls.
Monday, September 29.
Charles and David, Having seen the entire e-mail correspondence between ASA and May and Lawrence, I have to agree that you've been given a run-around. I'm forwarding that entire corpus to Don Lawrence, together with my assertion, and I believe that of a majority of the Senate Steering Committee, that the ASA is a legitimate faculty group whose publication should be entitled to campus access on the same terms as is granted to similar UA groups. I will add your promise to delete the offending line about second class postage, if that is the impediment. I will also say that IF it appears that The Alabama Observer has been singled out because of its political stance, then this would seem to be a breach of academic freedom and a matter of concern to the Faculty Senate. I'll send a copy of my note to you.
Mathew
Charles Nuckolls answers Mathew Winston and thanks him for his understanding that a serious violation of the first amendment is in progress. Nuckolls explains that The Alabama Observer has never had a second class postal liscense, and has no intention of sending the publication by bulk mail. The whole issue of "postal regulations" is a red herring, of course, intended to conceal the fact that the university does not want to recognize the ASA as a faculty organizaton.
From: "nuckolls"
Mathew, Thank you for your reply. Our correspondence, or lack of it, with May and Lawrence must be in written form. The reason for that should be obvious. It also seems obvious that May and Lawrence have no intention of responding to our request, or of honoring their obligation to impartial treatment of all campus organizations. This alone should be sufficient to bring the matter before a senate committee.
In any case, since the (new) justification for denial was made to you, not to us, we ask that you pursue it. You should inform them that we will delete the "second class postage" statement on page three. If that is not sufficient -- and I predict it won't be -- ask why. It will be interesting to see what they say.
With regards,Charles
It is now October 2nd, over a month since May first told Beito that he would not permit any further distribution of The Alabama Observer. Beito here writes to Mathew Winston, to find out if he has receivd a reply to his inquiry to Don Lawrence.
From: "Beito"
Matthew: Where do we stand on this? It has been three weeks now since Bill May promised to answer our question about the double standard. It has been even longer since Mail Services made its unilateral and (apparently unreseached decision) to limit our access to campus mail. In my view, it is becoming more obvious every day that is a case of political discrimination.
Thank you. David
Mathew Winston writes that he has heard nothing from Lawrence.
From: Mathew Winston Date: Thu, 2 Oct 2003 10:59:44 -0500
David -- I haven't heard anything back from Lawrence. I'm leaving immediately after class today for a minivacation, returning Sunday night. Monday I'll print out my e-mail to Lawrence and mail it to him. I'm sure that he received the same e-mail I sent you and has responded with silence, but I want to make sure he can't claim he didn't get it. I sympathize with your impatience. The next Steering Committee meeting is October 14, and so I don't think we could take any action before that date in any case. I would welcome from you a sugggestion as to a resolution we might make or any other action we might take.
Mathew
Part Three
Censorship Grows: The Administration Attempts to Prohibit Advertising of Lecture by David Bernstein
By October 2nd, we still had not discovered who makes approval decisions or how such decision are made. It was already obvious, of course, that the university administration wanted to ban us no matter what. They were making up the rules as they went along, with surprising little attention to being consistent.
We were planning to co-sponsor a talk by nationally recognized author David Bernstein on October 9th. To advertise the talk we wanted to send out flyers through campus mail. Our new exchange with Bill May began accordingly.
From: nuckolls [mailto:nuckolls@alabamascholars.org] Sent: Thursday, October 02, 2003 12:06 PM To: Bill May Subject: your office tomorrow
Dear Mr. May, The Alabama Scholars Association, a recognized campus organization, is co-sponsoring a speech by David E. Bernstein on October 9th at the University of Alabama Law School.
Tomorrow, we will deliver to your office the flyers advertising the talk, to be distributed to all members of the faculty. The flyer will be in the same form as the other ASA flyers your office has distributed >for us in the past, advertising, for example, the talks by Autherine >Lucy (September 2002), Peter Kirsonow (October 2002), and Robert Woodson (March 2003, and Alan Kors (April 2001).
We assume, since we have not heard to the contrary, that any >ifficulties regarding distribution of ASA materials through campus were resolved following Vice-President Mathew Winston's e-mail letter to you >and Mr. Lawrence (below) on Monday of this week.
We will see you at your office tomorrow.
Regards, Charles W. Nuckolls (Member, Facutly Senate, and Professor) Director & >David T. Beito (Member, Faculty Senate, and Assoc. Professor) President Alabama Scholars Association
Below is the message from May now claiming that he does not approve mailings, but Don Lawrence does. This contradicts what he told us almost a month earlier, in a haughty email in which he claimed sole responsibility for himself.
From: "Bill May"
Dr. Nuckolls, Mailings such as the one you are describing in this email must be approved before University Printing is permitted to use the HR Database for addressing purposes. A printed sample of the flyer should be submitted to Mr. Don Lawrence in the Payroll Office. Upon approval, we will promptly schedule the job, process and deliver to campus mail for distribution.
Thank you, Bill May
Dr. Nuckolls writes back and points out the contradiction.
Date: Thu, 2 Oct 2003 20:54:48 -0500 From: "nuckolls"
Mr. May, You clearly contradict yourself. Earlier, you stated in a message to Dr. Beito that Mr. Lawrence's "office no longer approves mailings, that's the responsibility of my office--which I also told you." The full text of that message is reproduced below.
Were you wrong about your office and its functions? Have the rules changed since you made this statement? Are new rules being devised to suit the occasion? The ASA is a recognized campus organization, and the speech, by Mr. Berstein, is a scheduled campus event that will take place at the Law School. Campus mail boxes receive announcements of the same kind every day. And until your recent -- and so far unexplained -- denial of services to the Alabama Observer, your office distributed ASA flyers on no less than four previous occasions.
We will be at your office tomorrow with the flyers, as I told you yesterday. You may deny us the right to mailing services if you wish. But I suggest you be very clear about the reasons, since we will be accompanied by reporters from the local media. Very Sincerely, Charles W. Nuckolls
The date is October 3rd. May finally responds to our inquiry of almost a month earlier asking him to spell out the regualtions he used to forbid distribution of The Alabama Observer. As you will see, we return here to the question of what is a "bona fide' campus organization. Since early September, we had asked May to tell us how he, or anyone else, knows what's "bona fide." He has never responded. But as you will see, there is a simple reason: there are no regulations and therefore no criteria to make such a decision.
From: "Bill May"
Dr. Nuckolls, I am responding to the several e-mails that you and Dr. Beito have sent to me concerning the Alabama Scholars Association, its official newspaper, The Alabama Observer, and use of intra campus mail.
First, in regard to your October 2, 2003 e-mail concerning distribution of flyers for the speech by David E. Bernstein at the Law School, intra campus mail distribution for this appears appropriate under the postal regulation because it is my understanding that the event is co-sponsored by a bona fide Law School student organization.
On Dr. Beito's question about the application of the postage suspension under 39 CFR Sec. 320.4, >to other items such as letters, it is my understanding that federal regulations allow UA's intra campus mail system to carry its own letters. Finally, if does not appear that the distribution of the Alabama Scholars Association's publication, The Alabama Observer, without postage using the intra campus mail system, is permitted under the postal regulation. As stated in 39 CFR Sec. 320.4, a university's internal mail system without postage may carry letters of its "bona fide student or faculty organizations to campus destinations."
The Alabama Scholars Association's official newspaper describes this itself as a "private, non-profit organization unaffiliated with any college or university in the state of Alabama." Consequently, under the circumstances the federal regulation will not permit UA to use its intra-campus mail system to distribute, without postage, an official newspaper of an organization unaffiliated with The University of Alabama. Of course, if the Alabama Observer carries the appropriate postage, then UA's campus mail system would deliver it. I hope this information is helpful to you.
The same day, October 3rd, May sends us this note indicating that the Berstein flyer can be distributed. Who made the decision and how was it made?
From: "Bill May"
Dr. Nuckolls, As I stated in my email yesterday, mailings utilizing the Human Resource database must be approved through Mr. Don Lawrence in HR. This morning, I received approval for the flyer related to the presentation by David E. Bernstein in the Law Center. Subsequent mailings will require approval prior to processing. Please direct further inquiries related to mailing approval to Mr. Lawrence.
Thank you, Bill May
Once again, Dr. Nuckolls writes May to point out the contradictions. First, the flyer has been "approved" without having been reviewed by anyone. But didn't May say that it would have to be? We did not show a sample copy to May or anyone else. We begin to wonder who is pulling the strings here. From what source is Mr. May taking his instructions?
From: nuckolls [mailto:nuckolls@alabamascholars.org] >Sent: Friday, October 03, 2003 10:05 AM >To: Bill May >Cc: beito@alabamascholars.org; jomason@cba.ua.edu; dperry@bama.ua.edu; >dlawrence@bama.ua.edu >Subject: RE: your office tomorrow
Mr. May, I understand from your message this morning that YOU have approved the flyer, not Mr. Lawrence, and therefore that YOU are in fact the responsible party in making these decisions.
Let us review the history of your "rules" and their application.
First, you stated in a phone call to Dr. Beito that the ASA was not a recognized campus organization, and therefore not entitled to distribution through the mail service. We demonstrated that this assumption in false, and we provided evidence, first, in the form of the university's own web site that lists us as a faculty organization, and second, in an offical letter from the Faculty Senate VP, stating that we are a recognized campus organization.
Second, after that, you stated in a phone call with Mathew Winston that because of our 2nd class postal notice, on page 3 of our publication, that we would not be allowed to distribute. Dr. Winston informed you and Mr. Lawrence that the notice would be removed, since the ASA has in >fact decided not to distribute using 2nd class postage.
Third, yesterday, you stated that Mr. Lawrence, not you, approved mailings, and that we must seek his permission. We reminded you that you precisely the opposite, in writing, only two weeks ago. You have now acknowledged that you alone make these decisions.
Finally, today, you have come up with yet a new reason for denial, and stated that the ASA is not a recognized campus organization because it identifies itself as a private, non-profit organization.
This simply won't wash, for the reasons stated above: the campus chapter IS recognized as a campus organization, precisely in the same way as other >rganizations, such as the AAUP, is recongized in the form of their campus affiliates. There is no contradiction in being an campus organization that is also the affiliate of a private state or national organization. If that were true, then you would not be able to distribute the the Alabama Academe, and this you have done regularly for many years.
Your mad scramble to come up with excuses are enough to boggle the mind, and by themselves constitute an abuse of power that is positively breathtaking in its arrogance.
This is where we stand today: First, the flyer that you have now agreed to distribute will be distributed under the name of the campus chapter of the Alabama Scholars Association. The campus ASA chapter will pay for it. Your agreeent to distribute will be with us alone, not with the law school or any of its affiliates. Second, we will providing your office with another flyer, advertising an exclusively sponsored ASA chapter event on campus. The event is entitled, "Campus Speech Codes, Censorship, and the Abuse of Power," to be presented by the UA ASA campus chapter and its members. A room has already been allocated -- something only done for bona fide campus organizations -- and the event will be advertised as a campus event. Third, we will be bringing to your office in the next week or so the next issue of The Alabama Observer, and we will request that it be distributed through campus mail.
We look forward to seeing you or representive in your office. Charles W. Nuckolls
Mr. May responds, but simply repeats the contradictions of the earlier messages. We still don't know who is granting this "approval," but clearly it is not May or Lawrence.
From: "Bill May"
Dr. Nuckolls, As I stated in my email yesterday, mailings utilizing the Human Resource database must be approved through Mr. Don Lawrence in HR. This morning, I received approval for the flyer related to the presentation by David E. Bernstein in the Law Center. Subsequent mailings will require approval prior to processing. Please direct further inquiries related to mailing approval to Mr.Lawrence.
Once again, Dr. Nuckolls points out the contradictions in May's message. We already realize, of course, that this is of no avail. But we are stunned that someon can so openly contradict himself. Only someone who knows he will be supported/protected at the highest levels can afford to be this cavalier.
Date: Fri, 3 Oct 2003 12:10:15 -0500 From: "nuckolls"
Mr. May, What you stated yesterday was that Mr. Lawrence would have to see and approve any proposed mailing. Mr. Lawrence has not "seen" the proposed mailing, and therefore he could not have "approved" the distribution, as you claim. If he did, then he violated the rules you yourself described. In any case, in your message to us two weeks ago, you explicitly said that you, not Mr. Lawrence, approved mailings. We still do not know who approves what, or according to what criteria, since with every exchange of messages you shift your ground. It is a sad and sorry spectacle, and would be laughable if it were not for the serious threat to academic freedom your behavior poses. Yours, Charles W. Nuckolls
At 1:30PM on Friday, October 3rd, the following people went to the office of Bill May: David Beito, Charles Nuckolls, David Perry, and Julie Arrington (a reporter for Dateline Alabama).
We presented May with the flyers for the Bernstein talk and for an ASA-sponsored roundtable on campus censorship.
Dr. Nuckolls then asked May who approved distribution for the Berstein talk. He did not want to tell us. Nuckolls then asked, "In what form did you receive the approval?" May said it was e-mail. "Well, someone must have signed the email." May said that was so. Nuckolls asked point-blank, "so, who signed the email." May answered, "Sandy Gordon, University Counsel." Could we see a copy of his approval? May said we could not, but also said he would seek approval for us to see the approval.
Interesting. We now knew that it was neither May nor Lawrence who had approved the Berstein flyer. It was the attorney for the University. Why was he involved? Who had involved him?
Date: Mon, 6 Oct 2003 09:46:19 -0500 From: "nuckolls"
Mr. May, You said on Friday that you would seek approval from Mr. Gordon to show us the approval you said you received from him by e-mail, authorizing distribution of the Bernstein flyer. Have you received approval to show us the approval yet?
Thank you, Charles W. Nuckolls Director Alabama Scholars Association
P.S. Someone will come to your office today, Monday, to pick up the flyers that appear to contain a printing error.
There was no response to the above message. On Tuesday, October 7, Dr. Beito wrote to May to ask him about sending out the second flyer (the one advertising the ASA-sponsored roundtable on campus censorship.)
From: Beito [mailto:Beito@alabamascholars.org] >Sent: Tuesday, October 07, 2003 2:11 PM
To: Bill May; the flyer advertising the ASA event early next week on censorship and the abuse of power. We have been waiting quite some time (more than three weeks as a matter of fact) to get this matter settled. Because the event is only a week away, our members need to know as soon as possible .
Another day passed. Dr. Nuckolls wrote to May to ask him, again, to send us a copy of the approval he said he received from attorney Gordon.
Date: Wed, 8 Oct 2003 12:01:55 -0500 From: "nuckolls"
Mr. May, You said below that "mailing processing requests should being by submitting a copy of the mail piece to Mr. Don Lawrence." We note, however, that you did not do this last week, since 1. we did not give you a copy of the Bernstein flyer prior to the "approval" and 2. you told us that you did not seek approval from Mr. Lawrence, but from Mr. Gordon, the University attorney.
We note that the confusion over "who approves what" has continued, unabated, since you originally claimed to us that YOU alone bore sole responsibility for the approval process. You also said you would ask Mr. Gordon if we could see his letter of approval to you. Did you ask him? Did he say no? Why would it not be possible for us, or for any campus group, to see the "approval" you say they must obtain?
If requests for approval must be sent to Lawrence, how is possible to deny us the right to actually see a copy of the approval? In any case, approval, by whatever party, of our ASA-sponsored flyer constitutes acknowledgment that we are a bona fide campus organization.
You yourself said to us, and to the news reporter who accompanied us, that you consider us to be a recognized campus organization. We therefore assume that there will be NO difficulty in the distribution of other ASA-sponsored materials, including The Alabama Observer.
Charles W. Nuckolls
On Wednesday, October 8th, May tells us that distribution of the second flyer has been approved. Once again, he prefers the passive voice. We do not know who approved it, of course, or according to what criteria.
From: "Bill May"
Dr. Beito, The mailing submitted by the local chapter of the Alabama Scholars Association has been approved. It will be processed and delivered to Campus Mail today.
Tuesday, October 7th: Dr. Nuckolls again address May to request a copy of the supposed approval letter. If there is one, why won't he show it to us?
From: nuckolls [mailto:nuckolls@alabamascholars.org] Sent: Tuesday, October 07, 2003 5:22 PM >>To: Bill May
Mr. May, We are waiting for you to send us a copy of the approval you said you received with regard to the Bernstein. Have you received approval to show us the approval yet?
You will recall that this "approval" was given without our first submitting a copy of the flyer, even though you said this was necessary. You also said it came in the form of an e-mail from the University's attorney, Mr. Gordon, not from Mr. Lawrence, as you first said it would. You also acknowledged that you made "a mistake" in first claiming that approval was your sole responsibility. Just whose responsibility it is, and how such approvals are made, is the question we expect you answer.
We see no reason why you cannot send us a copy of the e-mail from Mr. Gordon, if there is one, and we ask you to honor our request without further delay.
Regards, Charles W. Nuckolls, Professor
May now says that approval begins with submitting a copy of the mail to Lawrence. But he didn't do that, did he? And in any case, the approval came not from Lawrence but from Sandy Gordon, University attorney. He tells us he can't show us the approval, however, because of "confidentiality." Huh?
From: "Bill May"
Mail processing requests which utilize one of the Human Resources database lists should begin by submitting a copy of the mail piece to Mr. Don Lawrence in the Payroll office.
I do not have firsthand information regarding the approval process of the Bernstein flyer, other than receiving an email approval from Mr. Gordon's office. Communication with the Office of Counsel is subject to confidentiality guidelines and can not be forwarded.
Again, on October 8th, we write to May to ask him to seek approval for showing us his approval. Of course we realize that "approval to show us the approval" is a joke. It would be funny if the abuse of power were not so heinous.
From: Beito [mailto:Beito@alabamascholars.org] Sent: Wednesday, October 08, 2003 11:27 AM To: Beito@alabamascholars.org; Bill May Cc: jomason@cba.ua.edu; holt@law.ua.edu; perry@jn.ua.edu; -mwinston@bama.ua.edu; bbarrett@cba.ua.edu Subject: ASA flyer for next week's event
Dear Mr. May: Thank you for your note. You indicated last week that you would seek approval to send us a copy of the approval you received for the Bernstein flyer distribution. Could you please do so now?
Also, please send me a copy of the approval you received today for the event scheduled for next week which is sponsored by the UA chapter of the ASA.
We assume that since distribution of these flyers by the UA chapter of the ASA has been approved, that henceforth there will be no difficulty in distributing ASA sponsored materials, including the Alabama Observer.
Sincerely, David T. Beito, President, Alabama Scholars Association
Now a new name is introduced: Ms. Charlotte Harris, VP for Human Resources. Has she approved something? What is her role? Why does he tell us to submit request to Lawrence, when it is Gordon or Harris who are making the decisions? And how do they make the decisions? Keep in mind that we have never received an answer to this question.
From: "Bill May"
Dr. Beito, Communication with the Office of Counsel is subject to confidentiality guidelines and can not be forwarded. I received verbal approval for the flyer advertising the event next week from Ms. Charlotte Harris, Assoc. V.P. for Human Resources. All addressing requests, including the forthcoming edition of The Alabama Observer require approval prior to processing by University Printing Services if one of the University's HR database lists is to be utilized. Submit the request directly to Mr. Don Lawrence in the Payroll Office.
This was the final straw. Recall the May told us that the Berstein flyer could be sent out. We paid him about $25 on October 3rd. The lecture was on Thursday, October 9th. We learned on the afternoon of Wednesday, October 8th, that Mike Butts (Director of the Mail Office) would not send out the flyer because the ASA the Federalist Society were not recognized campus organizations. Unbelievable! Is this a matter of one hand not knowing what the other one is doing, or a carefully orchestrated program of harassment?
From: Mike Butts, To David Beito. Thursday, 8October.
Good Morning! Recently, University Printing brought over a box of flyers for the Federalist Society to be distributed via intra-campus mail. The flyer is an invitation from the Federalist Society to hear David Bernstein speak at the Law School.
Unfortunately, the Federalist Society is not recognized as a student organization listed with the University's Coordinating Counsel for Student Organizations. http://www.ccso.ua.edu/Directory/Directory.html In accordance with our policy, the use of Intra-Campus Mail is restricted to delivery of non-postage mail of bona fide University student, faculty, and staff organizations to campus destinations. Therefore, Campus Mail Service will not be able to distribute these flyers.
I have attempted to contact, David Sands, the president of the Federalist Society, to notify him of the situation. However, I have been unsuccessful in making contact with him. I contacted University Printing to see if they might have any additional contact information from the order that was placed with them. They informed us that you had placed the order, hence the reason for contacting you in regards to this matter.
Campus Mail Service will be happy to return these flyers to the appropriate person. Please respond and let us know where they should be returned.
Sincerely, Mike Butts, Manager, University of Alabama, Campus Mail Service
Dr. Nuckolls writes immediately to May, who had granted the approval and taken our money the previous Friday to pay for the distribution.
From: "nuckolls"
Mr. May, I just received a note from Mr. Butts, saying that distribution of the Berstein flyer has been blocked by his office. The message is below: (see above.)
Mr. May, what the heck is going on? You said to us on Friday that it had been approved. You accepted a check from us in payment for distribution. You assured us that it would be distributed this week. We expect you to honor your commitment, and to distribute the flyers immediately.
Charles W. Nuckolls
Dr. Nuckolls writes to Butts at the same time.
From: nuckolls [mailto:nuckolls@alabamascholars.org] >Sent: Wednesday, October 08, 2003 12:07 PM >To: Mike Butts
Mr. Butts, The distribution of the Berstein flyer was approved last Friday by Mr. May, who accepted payment for the distribution and assured us that the job would be done this week. The Berstein talk is co-sponsored by the Alabama Scholars Association, a recongized campus organization. This is indicated on the flyer. Another ASA-sponsored event, a roundtable discussion of campus censorship, is also being advertised by a flyer that will be sent out to all faculty in the next few days. This flyer was approved. If you need confirmation, I suggest you contact Mr. May. We expect the Berstein flyer to be distributed immediately.
David Beito writes to May.
From: "Beito"
Mr. May: Mr. Butts' arbitrary action directly contradicts your most recent notes assuring us that we had approval. Will the Bernstein flyer be sent out as *you* promised in writing? The event is tomorrow and it should have been in boxes this morning. Please note that the Bernstein event is also sponsored by the Law School, not just the federalist society....therfore Mr. Butts is now obstructing a law school event as well.
We called FIRE, the Foundation for Individual Rights in Education, and spoke with Greg Lukianoff, the attorney. He called Sandy Gordon and left a message in which he said that Butts' obstruction constituted harassment. Within an hour, we received the following note from Butts.
From: "Mike Butts"
Dr. Nuckolls, Both flyers will be distributed by Campus Mail Service tomorrow.
Mike Butts, Manager, University of Alabama Campus Mail Service
Dr. Nuckolls then wrote to Butts, and told him that distribution of the Berstein flyer on Thursday morning -- the very day of the lecture -- was hardly sufficient. The ASA demanded its money back.
From: "nuckolls"
Mr. Butts, Not good enough. Sending the Bernstein flyer tomorrow is obviously too late to do any good. You know that. You and May are responsible for the delay. The flyer was approved last Friday. Today is Wednesday. You are therefore responsible for the cost we incurred in printing the flyer.
We expect you to reimburse us the $53.00 it cost to copy it as well as the $25.00 we paid Mr. May for distribution. Please note that reimbursing our costs does not settle the larger issue of your interference in our authorized distribution. We intend to pursue the matter of your responsbility through the university grievance procedure, and we also reserve the right to take other action should that be necessary. You should be ashamed.
Charles W. Nuckolls Director Alabama Scholars Association
We have not received a response from Butts or May, and, needless to say, we have not gotten our money back.
Part Four
Provost Bonner Responds with Regulations
This part is just beginning. On Tuesday, October 14th, David Beito and Charles Nuckolls attended the meeting of the Faculty Steering Committee.
Mathew Winston reviewed the history of the case, and both he and John Mason agreed that there were no regulations up to this point on the recognition of "bona fide" faculty organizations. This is significant. It is tantamount to saying that university officials had abused their positions in order to harass and obstruct one organization that administrators do not like. As Mason said, the issue transcends this specific issue and goes to the heart of what it means to be a free and open society. We couldn't agree with him more.
Mason then revealed that he had spoken twice with University provost Judy Bonner and had just received from her a copy of draft regulations. The draft would be referred to the Planning and Operations Committee, which Mathew Winston co-chairs. He asked other members of the Steering Committee to offer their comments.
The proposed regulations acknowledge what we had known all along: there were not now, nor had there ever been, any rules on the recognition of faculty organizations. We had been misled, deliberately and for a long time, by officials bent on stopping campus distribution of The Alabama Observer.
The message is clear: we're going to ban you, and we'll come up with the rules later!
But what of the new regulations themselves? They are imprecise and vague, no doubt deliberately so, since their purpose is to permit selective discrimination against campus organizations. They provide no role for faculty involvement or faculty oversight in deciding on bona fide faculty organizations. There is no appeal for non-approval except to the Provost herself, and her decision is final.
Please see the draft below. And see if you can tell what the Provost means by "political" and "religious." We have more than a sneaking hunch that the ASA will end up being defined as both.
Regulating Free Speech: The Provost and the Policy of "Recognition"
Purpose: To define what constitutes a bonajIde University organization and to establish a procedure for University recognition of faculty and/or staff organizations as a bonajide University organization. Definition: A “bona fide University organization” is a group of faculty and/or staff who are employed University of Alabama and who have associated for a purpose that furthers or promotes to the University’s mission of education, research and outreach and whose organization is recognized by the Office of Academic Affairs as a bona fide University organization.
Groups of faculty and/or staff that are organized for commercial, personal, or private gain, for commercial advertising for organizations or individuals not affiliated with the University, for or in connection with general religious or political purposes or activities or for acting or serving as a collective bargaining unit or local chapter of a labor union shall not be eligible for University recognition as a bona fide University organization.
Recognition by the University of an organization as a bona fide University organization does not constitute an endorsement or approval by The University of Alabama of the conduct, actions, statements, views or opinions of that organization and the organization is solely responsible for its conduct, actions, statements, views or opinions. A bona fide University’s organization’s statements, views, or opinions are not necessarily those of The University of Alabama or its officers and trustees.
Guidelines for Recognition: I. Initial Recognition A. An organization of faculty and/or staff seeking initial recognition by the University as a bona fide University organization shall apply for recognition by submitting to the Office of Academic Affairs the following written materials: 1. Name of the organization. 2. A copy of the organization’s charter, articles of incorporation, articles of association, or other governing document that states as a minimum the organization’s purpose, the organization’s leadership structure, and membership. 3. Organization’s contact person’s name, campus mail address, email address, campus telephone number, and fax number. 4. Certification by the organization’s president that the organization’s membership consists only of faculty and/or staff who are currently employed by The University of Alabama.
Upon receipt of the application for recognition, the Office of Academic Affairs shall review the materials and if the application is incomplete, it shall promptly inform the applicant's representative of what additional information is required to make the application complete. C. Upon the receipt of a complete application, the Office of Academic Affairs shall promptly inform the applicant organization whether or not it is recognized by the University as a bonafide University organization.
Annual Certification of Recognition
During the month of August of each year, each bona Jide University organization shall submit to the Office of Academic Affairs a request for continued recognition as a bonafide University organization. In its annual request for continued recognition, the organization shall furnish the following information: 1. Organization's name. 2. Organization's contact person's name, campus mail address, email address, campus telephone number, and fax number. 3. Certification by the organization's president that the organization's membership consists only of faculty and/or staff who are employed by The University of Alabama. 4. Any changes in the organization's charter or other organizational document.
If a bona Jide University organization fails to submit a request for continued recognition during the month of August, the Office of Academic Affairs shall send a notice to the organization at its last known address requesting that it submit to the Office of Academic Affairs the information required for continued recognition within fourteen (14) calendar days. If, after sending the notice requesting the information for continued recognition, the Office of Academic Affairs has received no reply, then the Office of Academic Affairs without further action may revoke the organization's recognition by the University as a bona fide University organization.
Revocation of Recognition
The Office of Academic Affairs may revoke the University's recognition of an organization as a bona fide University organization for the following reasons:
1. Failure to file an annual request for continued recognition as required by Section Il-B of these guidelines; or 2. The organization's membership is not comprised solely of faculty andlor staff who are employed by the University of Alabama; or 3. The organization's purpose is either for commercial, personal, or private gain, for commercial advertising for organizations or individuals not affiliated with the University, or for acting or serving as a collective bargaining unit or local chapter of a labor union. B. Prior to revoking the University's recognition of an organization as a bona fide University organization, the Office of Academic Affairs shall send to the organization at its last known address a notice informing the organization of the ground(s) for revocation of its recognition as a bona fide University organization and giving the organization fourteen (14) calendar days to respond to the ground(s) stated in the notice. If the organization fails to respond to the Office of Academic Affairs within the fourteen (14) calendar day period, the University may proceed to revoke the organization's recognition as a bona fide University organization. If the organization responds to the notice within the fourteen (14) calendar day period, the Office of Academic Affairs shall review the organization's response and shall thereafter inform the organization of its decision. C. If an organization believes that the decision of the Office of Academic Affairs is erroneous, the organization within seven (7) calendar days of the date of the Office of Academic Affairs' decision may appeal that decision to the Provost. In its appeal the organization shall identify and describe with particularity each ground(s) for its contention that the decision of the Office of Academic Affairs is erroneous. Upon receipt of the organization's appeal the Provost may request a reply to the organization's appeal from the Office of Academic Affairs. The Provost may affirm the decision of the Office of Academic Affairs, reverse the decision of the Office of Academic Affairs, or send the matter back to the Office of Academic Affairs for further consideration. The decision of the Provost on the appeal shall be final.
Letter to Mathew Winston and Facutly Senate Committee Members from Charles Nuckolls:
Dear Mathew and Committee Members,
Please find below my comments on the Administration's proposed new regulations governing the "recognition" of faculty organizations.
First, the purpose of the university is to discover and relate knowledge. The best means to that end is the free exchange of ideas from different perspectives. Exchange encourages debate and comparison. On the basis of this we are able to evaluate ideas strictly on their merit, not according to the extent to which they have been approved by those in power. The university therefore should encourage the exchange of ideas and make no rule that could inhibit it, especially when the rule could be used by those in power to stifle dissent or avoid criticism of their actions.
Second, if there must be rules, the faculty alone should formulate and apply them. The proposed regulations were devised by the Administration and make the Administration alone responsible for enforcement. This defines the Administration as the supreme arbiter in deciding which groups - and therefore which ideas - are represented on campus as "bona fide." A policy of "official recognition" is the tried and true method of unaccountable authorities, dictators, and other despots to control debate and limit freedom of speech. The faculty should oppose it as they would any infringement of their academic freedom.
Third, the proposed regulations make no mention of what significance "recognition" has, but as the regulations arise out of campus mail use, we must assume they will be considered in all uses of University facilities. Such "uses" should be specified.
Fourth, the regulations would prohibit groups that are "political," but no definition of this term is provided. It could mean anything those in power want it to mean. Proponents of the regulations will argue that the University cannot recognize political organizations as this would violate its tax-exempt status -- a half-truth often used to killed expression of political views not favored by those in power.
The point is that "recognizing" a political organization is a far cry from "being" political, and the University, as an arm of the state, is exempt from the rule anyway. But more generally: would the prohibition of political groups also prohibit the University itself or its Administration from advocating/lobbying for particular political positions? One thinks immediately of the Administration's open lobbying of the Riley tax plan. Would that be prohibited? What about speeches or papers by members of the Political Science department. Would they be prohibited? What of the Coalition for Diversity and Inclusiveness, an organization that provides on its web site a link to an organization that calls for the impeachment of President Bush? And what about the Faculty Senate itself. Would it be prohibited from endorsing or promoting issues deemed political by the administraton? "Political" speech receives the highest level of Constitutional protection, and any attempt to prohibit it is unconstitutional.
Fifth, the proposed regulations plainly violate the First Amendment in denying recognition of organizations with "general religious" purposes -- whatever that means. Will a Baptist organization qualify and Christianity in "general" not? Would a faculty group dedicated to studying world religions as an academic matter not qualify? Would the Christian Faculty Association not receive official recognition? Sixth, the regulations would apparently prohibit membership in any recognized campus group by retired faculty, students, and the faculty of other state universities and colleges. That is just plain silly.
Sixth, if the regulations are implemented, various groups on campus may decide to seek legal redress under the provision of federal law, i.e., Section 1983 of Title 42, Chapter 21, Subchapter I: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. Section 1983 is the federal law gives us the right to sue to protect civil rights granted by Constitution. It is important to recognize that it can create personal liability for those seeking to impose regulations that infringe constitutional liberties.
The Provost's regulations are unconstitutional; they threaten the intellectual integrity of university's mission, indeed, its sole reason for being; and they open the University and its officers to the possibility of lawsuits. I would find them comical if it were not for the serious threat to liberty they create.
I suggest that the committee reject the proposed administrative regulations and substitute in their place a resolution celebrating freedom of speech and calling for the dismantling of systems and practices that discriminate against groups based on politics, religion, or ideology.
Yours Sincerely,
Charles W. Nuckolls
Part Five
Bonner Goes Ban Happy
Failing, at the end of the semester, to dragoon the Faculty Senate to her purposes, the Provost of the University of Alabama adopted a different approach: to ban The Alabama Observer claiming distribution on campus would violate "postal regulations."
Such regulations are never named or described, but the idea that allegiance to the post office trumps the first amendment to the Constitution would be laughable under any other circumstances. Not at the University of Alabama. The Provost and her superiors have decided, in the manner of most bureaucracies, to hide their agendas behind a smokesreen of rules and procedures. That it is done in such a crass and artless manner only testifies further to their arrogance.
November 25
From: Bonner, Judy [judy.bonner@ua.edu] Sent: Tuesday, November 25, 2003 6:58 PM To: Bill May; dlawrenc@bama.ua.edu; Charlotte Harris Cc: Sandy Gordon; Kerry L. Kennedy
Subject: Alabama Observer
I have asked the Faculty Senate to provide advice regarding whether the UA should develop a process for recognizing bona fide UA faculty organizations. I am waiting to get their imput. The homepage of the Alabama Scholars (www.alabamascholars.org) continues to say that "the Alabama Scholars Association is the state affiliate of the National Association of Scholars." The homepage also says: "The ASA now publishes a state-wide newspaper, The Alabama Observer, with news and opinion about money, politics and education in Alabama." Clearly, the Alabama Observer is not published by UA faculty for UA faculty. It is published by a state-wide organization for distribution state wide. Each issue has a circulation of 20,000 and can be found at over 200 locations in and around Birmingham and Tuscaloosa. One of the ads is for an advertising director / circulation manager in Tuscaloosa, Mobile, Birmingham, Auburn and Montgomery. Distribution of the Alabama Observer on campus must comply with the postal regulations.
The above message was sent after the Provost realized that the Senate would not back her proposal (in Part Four above) to regulate The Alabama Observer by "de-recognizing" the ASA as a bona fide faculty organization. The new gambit is to claim that the University must ban the Observer because unspecified postal regulations require it.
But the plot thickens. The AAUP publication, Alabama Academe, has been distributed on campus for over 30 years. It is no different from the ASA paper, however -- a fact the ASA pointed out. So what did Ms. Bonner do? She banned the AAUP paper as well.
This, we are told, is the first time in any state a university administrator has banned from campus mail the official state publication of the American Association of University Professors.
December 2
From: Bonner, Judy [mailto:judy.bonner@ua.edu] Sent: Tuesday, December 02, 2003 9:15 PM >To: Philip Johnson >Subject: RE: The Alabama Observer
After the initial issue concerning distribution of the Alabama Observer, I asked the Steering Committee of the Faculty Senate to provide advice regarding whether UA should develop a process for recognizing bona fide UA faculty organizations. As of this date, I am waiting to get their input.
Clearly, the Alabama Observer is not published by UA faculty for UA faculty. It is published by a state-wide organization for distribution state wide. The newsletter states "Each issue has a circulation of 20,000 and can be found at over 200 locations in and around Birmingham and Tuscaloosa." One of the ads is for an advertising director / >circulation manager for Tuscaloosa, Mobile, Birmingham, Auburn and Montgomery.
Just today I was asked about distributing Academe - the newsletter of >the Alabama Conference of the American Association of University Professors. This newsletter has a return address of Auburn University. And a paragraph in the newsletter states that AAUP exists at the campus, state and national levels. The newsletter goes on to state "Unfortunately, in Alabama at the moment there is only one highly visible and active local chapter - the one at Auburn." Consequently, I have advised the campus mail service that distribution of Academe must comply with the postal regulations.
While I continue to wait for input from the Steering Committee of the Faculty Senate, I do not believe that having procedures in place for >recognizing bona fide UA faculty organizations will change the outcome of the decision regarding distribution of these two newsletters. When these newsletters and any others that may exist are delivered to the University with the appropriate postage applied, we will most certainly >deliver the mail. But, we need to follow the postal regulations.
Part Six
Bonner Continues to Shift Responsibility from University to
. . . the Post Office!
After five months of attempting to get an answer from the Provost, David Beito received the following message. Not coincidentally, it followed by just one day the publication of an editorial in the Mobile Register describing Bonner's decision to ban the paper "small-minded" and "mean-spirited." The point is simple: Bonner's attempt to shift the blame to the Post Office, whose interests she claims to be protecting, is seen for what it is: a crudge gambit that simply reemphasizes how little respect she has for academic freedom at the University of Alabama.
-- From: "Bonner, Judy"
I would like to propose a different approach. If Professor Beito will present UA with a favorable opinion from the rates and classification >division of the USPS, UA will certainly re-evaluate its current position concerning the free distribution of the Alabama Observer, the official publication of the Alabama Scholars Association which is "a private, >non-profit organization unaffiliated with any college or university in >the state of Alabama" and is the "state affiliate of the National >Association of Scholars". Professor Beito knows full well that we have not "banned" the distribution of the Alabama Observer. And, we have not "censured" the Alabama Observer.
David Beito responds to Bonner:
Date: Tue, 27 Jan 2004 09:46:37 -0600 From: "Beito"
Dear Provost Bonner: It is unfortunate that we hear from you only now. For months, we have been trying to get a response to our inquiries on several matters. In one case, one of our members hand delivered a letter to your office. We hope that this will be the beginning of a productive dialogue which is always the best way to avoid and smooth out problems of this type before they spin out of control.
First, let us correct several misunderstandings in your email. The third page of the current issue of the Alabama Observer specifically stipulates that the Alabama Observer is published by the "University of Alabama Chapter, Alabama Scholars Association." Let me repeat: this issue was *not* published by the statewide ASA.
Second, the Alabama Observer was not distributed for "free" by the UA. The UA Chapter paid the low standard rate (and has a receipt showing this). It paid the same amount that has been routinely charged to other campus organizations for this service, such as the Campus Republicans, the Black Faculty and Staff Association, the Christian Faculty and Staff Fellowship, and the Coalition for Diversity and Inclusiveness. For more than the past year, the UA Chapter of the ASA has also paid this low rate to distribute other literature, without controversy, including the flier advertising the recent speech by Autherine Lucy Foster at the UA.
With due respect, you made the decision to enforce this rule. For this reason, we have asked some specific questions about whether (and why) you intend to apply the same rule to the mailings of other organizations on campus. Thus, we have reproduced below the letter asking Professor Winston (forwarded to you in his official capacity as vice president of the Faculty Senate) which includes these questions. Please note that the letter includes a request that these answers be provided within a week to both the UA chapter of the ASA as well as to these other organizations. Again, we look forward to future opportunities to have constructive and candid dialogue to further our mutual goal of improving the academic programs of the University of Alabama.
Sincerely, David T. Beito President Alabama Scholars Association Charles Nuckolls Director Alabama Scholars Association
Mathew: Thank you for the copy of the letter from Sheldon J. Gorovsky to Mike Butts which is dated on December 18. Since the actions of the UA Chapter of the ASA and the AAUP prompted Mr. Butts' request for this letter, I am surprised that no officer of either the Campus Chapter of the ASA or AAUP was given a copy until now. After reading the letter closely, I can see no evidence that it attempts to justify, or can be used to justify, any attempt to require the UA chapter of ASA to pay full postal rates when sending its literature through campus mail. Provost Bonner and President Witt, however, apparently disagree.
If this is indeed the case, let me first note that Gorovsky in his letter does not make a distinction between student, staff, and faculty organizations. In fact, he groups them together into one all purpose category. Thus, I expect clarification from Provost Bonner as soon as possible on the following questions. How many other student, staff, and faculty organizations will now also be required to pay full postal rates for use of campus mail? Because of the constraints of time, please have her address the qualifications of the following organizations:
First, the Christian and Faculty Staff Fellowship(see http://www-ece.eng.uab.edu/DCallaha/uabcfs/default.htm) at the University of Alabama. As you know, the Association primarily deals with matters of faith not the "academic goals" of the University of Alabama? Second, the University of Alabama College Republicans and/or Democrats. Of course, thse organizations are not concerned with the "academic goals" of the University. Only last year, Bruce Barrett the advisor of the College Repubicans informs me that the College Republicans paid the same low rate, formerely paid by the ASA, to advertise a speech by Richard Shelby.
Please note that the College Repubicans and College Democrats are part of a national and state organization Third, the Coalition for Diversity and Inclusiveness. The CDI is not primarily concerned with the "academic goals" of UA. Moreover, unlike the UA Chapter of the ASA, it has faculty and staff members from *several* colleges including Stillman.
Despite this, only last week, it paid the low standard rate to use campus mail to advertise upcoming events. Fourth, the Higher Education Partnership and its affiliated PAC. Their mission is not limited to the University of Alabama in Tuscaloosa. Like the ASA and AAUP, they represent more than one campus.
I look forward to the Provost's answers to these questions and urgently request that you ask her to inform the above organizations within one week whether they will now be required to pay full postal rates. Sincerely, David T. Beito ------ Original Message --------------------------------
February 20th, 2004
Foundation for Individual Rights in Education Writes to President Witt: Censorship of the Observer Fits the Usual Pattern
Foundation for Individual Rights in Education 210 West Washington Square, Suite 303 · Philadelphia, PA 19106 Tel: 215-717-3473 · Fax: 215-717-3440 · fire@thefire.org · www.thefire.org
Alan Charles Kors CHAIRMAN; Harvey A. Silverglate VICE CHAIRMAN; Erich Wasserman EXECUTIVE DIRECTOR; Greg Lukianoff DIRECTOR OF LEGAL AND PUBLIC ADVOCACY BOARD OF DIRECTORS William J. Hume Alan Charles Kors Joseph M. Maline Michael Meyers Marlene Mieske Daphne Patai Virginia Postrel Harvey A. Silverglate Ed Snider James E. Wiggins Kenny J. Williams (d. 2003)
BOARD OF ADVISORS David Brudnoy Lloyd Buchanan T. Kenneth Cribb, Jr. Candace de Russy William A. Dunn Thor L. Halvorssen Benjamin F. Hammond Robert E. Hanrahan, Jr. Nat Hentoff Roy Innis Wendy Kaminer Woody Kaplan Leonard Liggio Herbert London Peter L. Malkin Milton Rosenberg John R. Searle Ricky Silberman Christina Hoff Sommers
February 20, 2004
President Robert E. Witt University of Alabama Box 870100 Tuscaloosa, Alabama 35487-0100 Sent via U.S. Mail and Facsimile (205-348-8377)
Dear President Witt,
We are confident that you are familiar with the Foundation for Individual Rights in Education (FIRE) from our successful effort last fall, in coordination with the Alabama Scholars Association (ASA), to prevent the enforcement of the University of Alabama’s total ban on dormitory window displays. In a letter that we wrote in the course of the debate over this policy, FIRE stated, “We find it remarkable that a university was willing to ban an entire category of expression rather than risk any student being offended.” UA’s administration responded by backing down and “indefinitely” tabling that overbroad restriction of students’ First Amendment rights.
We write to you today in protest of UA’s refusal to allow the UA chapter of the ASA to distribute to members of the UA community the newsletter it publishes, The Alabama Observer, at the discounted postal rate enjoyed by most other faculty and student groups. UA’s recent decision indicates that the suppression of an entire category of expression in order to silence an unpopular viewpoint is part of a pattern of behavior that has become de facto university policy.
For more than a year, ASA literature—including The Alabama Observer—was routinely sent to members of the University of Alabama community through campus mail at the standard discounted rate for student and faculty groups. Other groups that sent and continue to send mail at this discounted rate include the College Republicans, the Black Faculty and Staff Association, the Christian Faculty and Staff Fellowship, the Coalition for Diversity and Inclusiveness, and the statewide Higher Education Partnership (along with its political action committee). Several months ago, however, UA postal administrators rejected a mailing of the Observer at the discounted price because, they claimed, it did not come from a “bona fide faculty organization”; they argued this despite the fact that UA did not have and still does not have formal guidelines for what constitutes a “bona fide faculty organization.”
This was only the first of a number of shifting excuses offered in various communications to the ASA by UA administrators—including Provost Judy Bonner—for the university’s refusal to distribute the Observer. Furthermore, when the ASA pointed out that Alabama Academe, the newsletter of the Alabama chapter of the American Association of University Professors, was being sent at the discounted rate despite its similarity to The Alabama Observer, Provost Bonner decided that UA would also cease to deliver Academe at the discounted rate rather than acknowledge that both newsletters should be entitled to the discounted rate.
The ability to use the discounted rate for mailing is vital for student and faculty organizations. While the monthly cost of sending the Observer to UA faculty and staff under the discounted rate was approximately $100, the Class II bulk postal license that UA now insists that the ASA use would raise that cost to approximately $900 a month in addition to yearly permit fees. As UA administrators well know, this more than eight-hundred-percent increase in price effectively precludes the distribution of the locally produced Observer to members of the UA community.
Provost Bonner’s willingness in this situation to suppress all viewpoints in order to ensure the silencing of one particular viewpoint mirrors the university’s earlier decision to ban all window displays—including the American flag. UA’s actions last fall were widely condemned and provoked criticism in the media as well as civil disobedience and protests by students and professors. Despite this overwhelmingly negative reaction—which forced the university to “indefinitely table” the policy—UA does not seem to have learned the lesson that heavy-handed attempts to censor speech have no place at an institution devoted to open discourse and debate.
As a public university, UA has both a legal and moral responsibility to uphold the Constitutional principles of freedom of speech and expression. Moreover, as an institution of higher learning, UA has a duty to ensure that the campus serves as a vibrant “marketplace of ideas,” not as a sterile echo chamber for “approved” viewpoints only. Unfortunately, however, for the second time in less than a year UA has shown its willingness both to sacrifice the principles of liberty for the sake of impairing the communication of views critical of the university’s administration and culture, and to attempt to cover up these efforts at censorship by, ironically, censoring even more speech. This attempt to hide the truth has fooled no one, as evidenced by a January 21, 2004, editorial in the Mobile Register that condemned UA’s attempts to silence the ASA.
FIRE requests that the University of Alabama once again reverse course and encourage freedom of speech and expression by allowing the Alabama Scholars Association, the Alabama chapter of the American Association of University Professors, and any other campus group that may be experiencing this type of unfair discrimination to send mail to members of the UA community at the discounted rate offered to many other campus groups.
Please spare the University of Alabama the embarrassment of yet again fighting the basic principles enshrined in the Bill of Rights.
Sincerely, Greg Lukianoff Director of Legal and Public Advocacy
cc: Judy L. Bonner, Provost and Vice President for Academic Affairs, University of Alabama Mathew I. Winston, Associate Professor of English, University of Alabama Michael J. Butts, Manager, Campus Mail Service, University of Alabama Malcolm Portera, Chancellor, University of Alabama Governor Bob Riley, President Ex Officio, Board of Trustees, University of Alabama John Hicks, Secretary to the Board of Trustees, University of Alabama The Board of Trustees of the University of Alabama Charles W. Nuckolls, Professor of Anthropology, University of Alabama David T. Beito, Associate Professor of History, University of Alabama
February 23, 2004
Witt "Responds" to FIRE: Denial and Evasion Continue
"We have received your letter regarding the University's enforcement
of U.S. postal regulations, and your views will be given appropriate consideration.
Robert Witt
Mobile Register Again Condemns Witt
Censorship Policy
June 2, 2004
A national academic freedom organization is criticizing University of Alabama administrators for barring a conservative faculty group from > using the campus mail system.
"UA's message is clear," said Greg Lukianoff, director of legal and public advocacy for the Philadelphia-based Foundation for Individual Rights > in Education.
"Criticism of UA President Robert E. Witt and his administration will not be tolerated and will be met by repression and censorship."
Lukianoff's statement was recently posted on FIRE's Web site. As the Mobile Register reported in January, the dispute started after University Provost Judy Bonner barred the Alabama Scholars Association from sending its newsletter via low-cost campus mail. Postal regulations allow only organizations funded and managed by > the university to use the system, Bonner said at the time.
Scholars Association leaders alleged that the policy was retaliation for their advocacy of term limits for administrators and a study > that found widespread grade inflation in some departments. Caught in the crossfire was the venerable American Association of University Professors, which also was barred from the campus mail system.
Lukianoff labeled the ban as "part of a pattern of disrespect for > free speech." University spokesman Chris Bryant responded, "This is a postal regulation issue."
The Alabama Scholars Association is the state chapter of the National Association of Scholars, a generally conservative organization with priorities that include free speech and academic standards.
Despite the campus mail cutoff, the group is finding other means of getting its message across.
For example, in an article on its Web site titled "The Mandarins of Alabama," the association displays adjoining photos of the university's main administration building and the tomb of the late Chinese Communist leader Mao Zedong.
Sean Reilly Newhouse News Service 1101 Connecticut Ave. NW Suite 300 Washington, DC 20036 Ph: (202) 383-7815 Fax: (202) 296-9537