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SPRING 201 3

VICTORY!

FOR STUDENT RIGHTS

ZACCARI FOUND LIABLE

EASTERN KENTUCKY UNIVERSITY EARNS

GREEN LIGHT P.5

DEPAUL STUDENT

PUNISHED FOR EXPOSING VANDALS P. 9

UC DAVIS PROF.’S ACADEMIC FREEDOM

VIOLATED P.10

F IR E A NNOU N CES 2013 SUMMER CO N FEREN CE P.8

LETTER FROM Associate Director, Campus Freedom Network

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chool may be ending soon, but summer will be no vacation for us here at FIRE! The summer months give us a chance to focus on education, especially our efforts to change the culture on college campuses. Throughout the year, in case after case, we see students “unlearning liberty” in college. Students are taught that they have fewer rights than they actually do and—even worse—that censorship is a just response to opinions they disagree with or speech they find offensive. FIRE’s summer programs prepare students to counter these arguments and stand up for free speech and open debate at their schools. In June, we will welcome a new class of undergraduate and legal interns from around the country to our Philadelphia office. The summer internship is one of FIRE’s longest-running programs, and, as a former FIRE intern myself, I can honestly say it is a life-changing experience. Our interns help support our work with research and writing

FIRE’S 2012 SUMMER INTERNS

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projects. They also explore FIRE-related issues by examining the philosophy of On Liberty and the due process violations illustrated JACLYN HALL in Harry Potter. Our interns return to campus as vocal advocates for free speech, and many have successfully reformed speech codes at schools like the College of William & Mary, Indiana University, and the University of North Carolina. You will definitely be hearing about the 2013 interns’ accomplishments in The FIRE Quarterly over the next year! In July, the FIRE staff and interns will head to Bryn Mawr College for FIRE’s sixth annual summer conference, the only national conference where students from across the political and ideological spectrum come together to learn about how to protect individual rights on their campuses. More than 50 student leaders from around the country will hear from First Amendment experts, FIRE staff members, and each other about how to confront campus censorship. This year, our distinguished speakers will include author Juan Williams, journalist Megan McArdle, and First Amendment attorney Bob Corn-Revere. For many students, FIRE’s internship or conference is the first time they hear about how bad the epidemic of campus censorship has become (it certainly was for me). For others, these programs provide much-needed confirmation that they are not alone in opposing the censorship they have seen and experienced. Thanks to your generous support, we will spend Summer 2013 encouraging students to find their voices and defend their rights when they return to campus next fall. Jaclyn Hall

SPRING 2013

cover story

VICTORY FOR STUDENT RIGHTS: JURY FINDS FORMER COLLEGE PRESIDENT LIABLE FOR $50,000

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n February 1, a federal jury found former Valdosta State University (VSU) President Ronald M. Zaccari personally liable for $50,000 for violating the due process rights of former student Hayden Barnes in the case of Barnes v. Zaccari. In May 2007, Zaccari expelled Barnes for peacefully protesting the president’s plan to construct two parking garages on campus, calling a collage posted by Barnes on his personal Facebook page a “threatening document” and labeling Barnes a “clear and present danger” to VSU. Barnes first came to FIRE for help in October 2007. Barnes’ ordeal began in the spring of 2007, when he protested Zaccari’s plan to construct two new parking garages on campus at a cost of $30 million. By posting flyers and sending emails to Zaccari, student and faculty governing bodies, and the Board of Regents of the University System of Georgia, Barnes expressed his concerns and proposed what he saw as environmentally friendly alternatives. Barnes also penned a letter to the editor of the VSU student newspaper about the proposed parking garage plans and wrote to Zaccari to ask for an exemption from the mandatory student fee designated for funding the construction. In response to Barnes’ activism, Zaccari personally ordered that he be “administratively withdrawn” from VSU in May of 2007, ignoring the concerns raised by members of his administration about this course of action. Zaccari absurdly claimed that Barnes presented a “clear and present danger” to both Zaccari and the VSU campus on the basis of a cut-and-paste collage Barnes had posted on his Facebook page. The collage included pictures of Zaccari,

HAYDEN BARNES

a parking deck, and the caption “S.A.V.E.— Zaccari Memorial Parking Garage.” Given no notice or opportunity to defend himself, Barnes came to FIRE for help in October 2007. February’s verdict followed five years of litigation, both at the trial and appellate levels. In January 2008, Barnes filed suit in cooperation with eminent First Amendment attorney and FIRE Legal Network member Robert Corn-Revere of Davis Wright Tremaine in Washington, D.C., and Cary Wiggins of Wiggins Law Group in Atlanta. Davis Wright Tremaine associates Lisa Zycherman and Erin Reid also worked on the case. In September of 2010, the U.S. District Court for the Northern District of Georgia found that because Zaccari expelled Barnes without notice or a hearing, Zaccari violated Barnes’ constitutional right to due process. In its opinion, the

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“This is a victory for me but it’s also a victory for students everywhere. I hope that other college administrators take heed and see that violating students’ rights can be costly and that they will be held accountable.” -Hayden Barnes

District Court ruled that since Zaccari ignored “clearly established” law in punishing Barnes, Zaccari could not avail himself of the defense of “qualified immunity” and could be found personally liable for damages. Zaccari and the Board of Regents appealed the District Court’s ruling to the United States Court of Appeals for the Eleventh Circuit in October 2010, and oral arguments in the case were heard in Montgomery, Alabama, in November 2011. The Eleventh Circuit upheld the District Court’s denial of qualified immunity to Zaccari, finding that Barnes “had a clearly established constitutional right to notice and a hearing before being removed from VSU.” Joined by 14 other organizations from across the ideological spectrum concerned about student rights on public campuses, FIRE authored and filed an amici curiae brief with the Eleventh Circuit in April 2011 urging the court to reach that result with the assistance of Atlanta-based attorney Cory G. Begner of Begner & Begner, PC. Following the Eleventh Circuit’s ruling, the case returned to federal district court. The trial began on Monday, January 28, 2013, before the United States District Court for the Middle District of Georgia, Valdosta Division, and ended on February 1 with the verdict in Barnes’ favor. In addition to the $50,000 judgment, attorneys’ fees still remain to be assessed against the losing party. Barnes’ separate breach of contract claim against the Board of Regents remains pending in state court.

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“We are very pleased to have secured a just outcome for Hayden,” said Corn-Revere. “After five years, I finally feel vindicated,” said Barnes. “This is a victory for me but it’s also a victory for students everywhere. I hope that other college administrators take heed and see that violating students’ rights can be costly and that they will be held accountable. I thank my legal team and FIRE for making this victory possible and my friends and family for standing by me through this difficult fight.” FIRE has aided Barnes since learning of his case in October 2007. FIRE wrote repeatedly to Board of Regents officials, urging them to undo VSU’s unlawful actions and uphold the Constitution within the university system. Under pressure from FIRE and the federal lawsuit against Zaccari and other VSU administrators, the Board of Regents finally reversed Barnes’ expulsion early in 2008, and Zaccari retired months earlier than planned. Under further pressure from FIRE, then-VSU President Patrick J. Schloss dismantled VSU’s unconstitutional free speech zone in September 2008. “College administrators have been blatantly and willfully violating student rights for decades, but they have far too often dodged personal responsibility. Not so today,” said FIRE President Greg Lukianoff. “We hope this serves as a muchneeded wake up call to college administrators that it’s time to start paying close attention to the basic rights of their students.”

SPRING 2013

in action

FIRE CLEARS WAY FOR ‘EMPTY HOLSTER’ PROTEST AT SANTA FE COLLEGE

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fter FIRE’s intervention in February, Santa Fe College allowed an “empty holster” protest to proceed on campus, despite attempts by campus police to prohibit the event.

On January 9, Young Americans for Liberty (YAL) representative Adam Edwards announced the group’s intention to hold an empty holster protest on campus at a meeting of Santa Fe’s Student Government Senate. Empty holster protests, in which students wear empty gun holsters to symbolically protest laws prohibiting students from carrying concealed handguns on campus, have been held peacefully and without incident on dozens of campuses in recent years and constitute protected political expression. Upon learning of YAL’s planned protest, Santa Fe College Director of Student Life Dan Rodkin requested that Edwards meet with him and college Chief of Police Ed Book to discuss the event. Edwards and YAL President Josh Norris reported that, during the meeting, Book signaled strong opposition to the protest, stating that he would draw his firearm on protest participants seen wearing empty holsters. (Book later denied making this statement.) Book also reportedly stated that he would consult with legal authorities in an attempt to block the event. FIRE wrote to Santa Fe College President Jackson N. Sasser on January 30, making clear that YAL’s empty holster protest was fully protected by the First Amendment. FIRE reminded Santa Fe of Tarrant County College (TCC) in Texas, which for two years refused to allow empty holster protests. The censored students sued TCC, and a federal district court ruled that TCC’s reliance on a policy prohibiting “disruptive activities” to

EMPTY HOLSTERS USED IN SANTA FE YAL PROTEST. Photo By Jared East

block the protest violated the First Amendment. TCC ultimately paid $240,000 in attorneys’ fees for ignoring the Constitution. Fortunately, President Sasser quickly responded to FIRE’s letter and acknowleded YAL’s First Amendment rights. In his response, Sasser made clear that YAL would encounter no administrative or police opposition to its empty holster protest, stating that “[t]he First Amendment is of paramount importance to our mission to educate students and prepare them to be leaders in our society.” Sasser further stated that Santa Fe and its police department “recognize[]the importance of spirited and intellectual debate.” YAL successfully held its empty holster protest in early February without incident. “We’re always pleased to see a college president clearly acknowledge the First Amendment rights of his students,” said Peter Bonilla, associate director of FIRE’s Individual Rights Defense Program. “Other colleges should keep President Sasser’s recognition of ‘the importance of spirited and intellectual debate’ in mind when they encounter expression on divisive issues.”

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in action

EASTERN KENTUCKY UNIVERSITY EARNS “GREEN LIGHT” RATING

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astern Kentucky University (EKU) eliminated all of its speech codes in early February, earning FIRE’s highest, “green light,” rating for free speech. While the overwhelming majority of the nation’s colleges and universities maintain policies that clearly and substantially restrict freedom of speech, EKU is now a proud exception as one of just 16 schools nationwide to earn a green light and as Kentucky’s first green light school. EKU administrators worked with FIRE attorneys to ensure compliance with the First Amendment. “It pleases me very much that Eastern Kentucky University has joined the ranks of FIRE’s green light institutions,” said EKU President Dr. Doug Whitlock. “Our universities need to be places where thoughts and ideas are expressed openly and freely consistent with the letter and spirit of the First Amendment. That is our commitment at EKU. We are most appreciative of the help the FIRE staff has been in helping us reach this distinction.” FIRE began working on speech code reform with EKU administrators in August 2012. Samantha

Harris, FIRE’s director of Speech Code Research, and Michael Reagle, EKU’s associate vice president for student affairs, led the effort. While there are only 16 green light schools nationwide, EKU is the seventh university in just the last three years to earn the designation. This positive trend reflects growing awareness of free speech issues on campus, as well as increased cooperation between students, administrators, and FIRE. “The entire Eastern Kentucky University community should feel extremely proud,” said FIRE President Greg Lukianoff. “The university’s commitment to First Amendment rights has made the university a shining example of how to respect and protect free expression on campus.”

SPEECH CODE OF THE QUARTER FIRE announces its Speech Code of the Quarter: Wesleyan University. While Wesleyan is private, it promises its students freedom of speech. Yet Wesleyan’s Student Handbook prohibits any “actions that may be harmful to the health or emotional stability of the individual or that degrade the individual or infringe upon his/her personal dignity”—a policy that stifles free expression and leaves students’ rights at the mercy of the most sensitive members of the university community.

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SPRING 2013

on campus

FIRE ANNOUNCES 2012 ESSAY CONTEST WINNERS

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IRE’s annual essay contest reaches out to high school students as part of our “Know Before You Go” initiative, alerting them to the threat of censorship before they get to campus. This year, more high school students than ever before—nearly 3,200—submitted essays explaining why they believe free speech is important in higher education.

physical torture occurred. While most people had no idea that a better life was possible outside of the Soviet Union, my parents knew better, and they decided to move to the United States where they knew their basic rights and liberties would be constitutionally guaranteed. Because of what my parents went through, I’ve always been aware of how important and precious the right to free speech is and Mark Gimelstein, a senior at Great how easily it can be taken away. As MARK GIMELSTEIN Neck South High School in Great someone who is never afraid to express Neck, New York, won first prize for his essay and his views at school, even though they often difwill receive a $10,000 college scholarship. Nora fer from those of my classmates, I look forward Faris of Concordia High School in Concordia, to college because of all of the opportunities it Missouri, took second place and will receive a offers to become even more politically informed $5,000 college scholarship. Our three third-place and engaged. However, our country’s colleges winners (for $1,000 scholarships) are Alexandra and universities—despite being elite institutions Crum, Hannah Dent, and Asheshananda of learning in the freest nation in the world— Rambachan. The winners of our $500 scholinstead often choose to indoctrinate students, arship drawing are Clayton Hammonds Jr., silence independent thought, and enforce politiMinhi Kang, Hannah Rasmussen, and Brian cal correctness upon the student body. It is clear Shouse. that these policies contradict the very mission of higher education, whose advancement is FIRE thanks all of the participants in this year’s inextricably linked to the exercise of free speech. essay contest and wishes a hearty congratulations to all of the winners! FIRE also thanks the When students enter institutions of higher educaSandra and Lawrence Post Family Foundation tion, they have entered a moment in their lives for its generosity in making the 2012 essay when their political and intellectual curiosity is at contest possible. a peak. In an environment of learning, students are supposed to be encouraged to explore and The Audacity of Independent Thought make themselves into well-rounded individuals by Mark Gimelstein with their own thoughts and beliefs. After leaving Before my parents left the Soviet Union in the behind the restrictive, routine-based world of 1980s, they lived under an oppressive regime high school, college students should have the where the concept of free speech did not exist. autonomy to make their own decisions in order Anyone perceived to be critical of the government to make the transition from naïve teenagers into was threatened, imprisoned in the gulags, or even mature adults. As a result, when students like detained in psychiatric wards where mental and Andre Massena from Binghamton University and SPRING 2013

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Hayden Barnes from Valdosta State University are seen protesting against their professors and universities for social justice, environmentalism, and other issues by putting up posters or flyers and sending emails expressing their concerns, it should be considered a victory for higher education. When incoming freshmen from the University of Delaware express a wide variety of differing beliefs concerning politics, race, sexuality, and other issues of the day, it should be seen as a positive step toward real dialogue and understanding among the student body. When students like Keith John Sampson of Indiana University-Purdue University Indianapolis read books that interest them in order to educate themselves, we should view this as a success for the university. However, all of these students who engaged in activism or exercised their right to free expression were not celebrated by their universities, but rather condemned and punished. Student activists like Andre Massena and Hayden Barnes were threatened or nearly expelled for having the nerve to express a concern or gripe with a school’s policies. Many colleges have vigorously tried to cleanse the ideologies of their students and make them only believe the views approved by the school. At the University of Delaware, university officials took “diversity training” too far by asking intrusive questions and making their students feel polarized and guilty for having unique personal beliefs. Keith John Sampson, on the other hand, was charged with violating school policy for reading literature that his university deemed politically incorrect and considered hazardous to its students. These are just a few of the many cases in which colleges and universities across the United States grossly violate their students’ rights to speak freely, which are guaranteed by the Constitution and nearly always by the university itself. From free speech zones, which isolate students into a part of campus that is far too small to accommodate for the massive student body, to speech codes, which unreasonably prohibit what students 07

can say, think, or even wear, universities have constantly tried to interfere with and take away their students’ First Amendment rights. If injustices like these do not stop, what are the benefits of higher education? What is the point of going to an institution in the hopes of pursuing interests and enlightening oneself? College students, of all people, demonstrate their drive for knowledge, which requires the ability to think freely and ask important, critical questions. Colleges and universities claim the pursuit of knowledge as their goal, yet the attempted censorship of free speech, which has been ongoing for many years, is not compatible with this idea. Higher education as a principle promotes people pursuing their own interests and enlightening themselves with the multitude of resources and the autonomy that colleges and universities provide. Free speech naturally develops when people are allowed to educate and develop their ideologies and discuss them with others. When this liberty is highly censored and taken away, education becomes fundamentally different. Public discourse slowly withers away as the opinions of most students and teachers become exactly the same. Creativity disappears without any individuality, which is completely counterproductive to the overall higher education experience. People are bullied into a corner where political and intellectual diversity ends and the homogenization of “socially acceptable” opinions begins. It is impossible for higher education to exist as it was originally intended without the guarantee of First Amendment rights to all. Both freedom of speech and higher education are complements to each other—without one, the other fails to survive. The fight to preserve this sacred liberty will be an ongoing battle, but students must persevere to ensure that the freedom of speech is protected in the present and continues to be respected by higher education institutions throughout the United States in the future.

SPRING 2013

on campus

FIRE’S 2013 SUMMER CONFERENCE

Featuring Juan Williams, Megan McArdle, and Bob Corn-Revere

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IRE is thrilled to announce that the 2013 Campus Freedom Network Conference will be held July 19–21 at Bryn Mawr College, just outside of Philadelphia. Our conference brings together college students from across the political spectrum and around the country who care about free speech, and inspires them to protect and celebrate freedom of expression on their campuses. The 2013 conference will feature an impressive group of speakers, including: JUAN WILLIAMS, a noted author and journalist for Fox News and The Washington Post. When Williams was fired from NPR in 2010, it sparked a national discussion about the negative impact of political correctness on American discourse, as chronicled in his book Muzzled: The Assault on Honest Debate.

MEGAN MCARDLE, a special correspondent for Newsweek and The Daily Beast covering business, economics, and public policy. McArdle has written extensively about the rising cost of higher

education and the shifting value and meaning of a college degree in our society. BOB CORN-REVERE, a partner at the law firm of Davis Wright Tremaine in Washington, D.C., and a leading expert on First Amendment law, who has represented student Hayden Barnes in his case against Valdosta State University administrators. Each student who attends will also receive a free copy of FIRE President Greg Lukianoff’s new book, Unlearning Liberty, and will hear from FIRE staff and fellow students who fought back when their free speech rights were violated. The conference will open with a reception on Friday afternoon and close with lunch on Sunday. The conference is FREE and open to current students at U.S. colleges and universities, including graduate students and incoming freshmen. Room, board, and meals will be provided for attendees. Up to $300 will be reimbursed for travel expenses to and from Bryn Mawr. Encourage the students in your life to register today at thefire.org/conference!

STUDENTS MAKING A DIFFERENCE ON CAMPUS FIRE’s Student Spotlight series highlights some of the amazing work being done by students to secure free speech rights for themselves and their peers on campus. Students like these are the key to changing the culture of censorship on college campuses: Danielle Susi & The Quad News Staff, Quinnipiac University; Chris Morbitzer ’12, University of Cincinnati; David Deerson ’13, University of North Carolina at Chapel Hill; Morgan Freeman, Sam Houston State University; Alex McHugh ’14, American University. If you know of an outstanding student or student group that is promoting free speech on campus, nominate them for Student Spotlight by emailing jaclyn@thefire.org.

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rights at risk

DEPAUL PUNISHES STUDENT FOR EXPOSING VANDALS OF PRO-LIFE DISPLAY

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ePaul University student Kristopher Del Campo has been placed on probation for publicly posting the names of 13 students who vandalized his organization’s pro-life display. Del Campo was found responsible for multiple conduct violations, including one that absurdly brands the publication of the students’ names as “disorderly, violent, intimidating or dangerous.” On January 22, 2013, the DePaul chapter of Young Americans for Freedom (YAF) attained the required permits and planted 500 pink and blue flags in the campus quad to commemorate the 40th anniversary of Roe v. Wade. That afternoon, several DePaul students tore the flags from the ground and threw them in trash cans around campus. DePaul’s Department of Public Safety investigated the incident after Del Campo—who is the DePaul YAF chapter chairman—reported the vandalism.

During the course of the investigation, 13 DePaul students admitted to throwing away the flags. DePaul Assistant Dean of Students Domonic Rollins provided Del Campo with a report of the students names, which the national YAF organization posted on its website. Three days later, DePaul notified Del Campo that he was suspected of violating the Code Of Student Responsibility. DePaul charged Del Campo with “Disorderly, Violent, Intimidating or Dangerous Behavior,” which entails “creat[ing] a substantial risk of physical harm,” “causing significant emotional harm,” and “bullying.” FIRE wrote to DePaul’s president, Rev. Dennis Holtschneider, on February 21, making clear that students like Del Campo must be free to publicly identify the students who commit crimes against them. FIRE also pointed out that labeling Del Campo as a potentially dangerous threat for doing so was absurd and made a mockery of DePaul’s free speech promises. Nevertheless, DePaul found Del Campo responsible for the charge of “Disorderly, Violent, Intimidating or Dangerous Behavior,” as well as a charge related to “Judicial Process Compliance.” Del Campo has been placed on disciplinary probation and is prohibited from all contact with the students named in the public safety report. DePaul has also required that Del Campo complete a reflection letter as an “Educational Project.” Though DePaul upheld Del Campo’s punishment on March 21, FIRE continues to advocate for his rights and call public attention to DePaul’s wrongdoing.

BYRNE HALL ON DEPAUL CAMPUS

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SPRING 2013

UC DAVIS IGNORES COMMITTEE FINDINGS THAT PROFESSOR’S ACADEMIC FREEDOM WAS VIOLATED

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or more than two years, University of California, Davis, School of Medicine professor Michael Wilkes has dealt with threats to his academic freedom and free speech that have chilled faculty expression at the California university. FIRE has been working with Wilkes to vindicate his rights.

promised FIRE and the UC Davis faculty that it would conduct a thorough investigation of CAFR’s findings.

In January 2013, however, an administrative review panel largely rejected the findings of the CAFR report. While the panel did find that the health system counsel’s letter to In September 2010, Wilkes coWilkes had been inappropriauthored a column in the San ate and could reasonably be Francisco Chronicle, criticizing construed by faculty members UC DAVIS MEDICAL CENTER a prostate cancer screening as a threat against their rights, method he saw as seriously flawed. Wilkes it rejected CAFR’s report in other key areas also criticized UC Davis for co-sponsoring a without substantiation. symposium he felt excessively promoted this Among the findings rejected was CAFR’s deterscreening method. mination that the timing of Meyers’ email to Within hours of the column’s publication, Wilkes Wilkes (received mere hours after his column’s received an email from Executive Associate publication) had been highly suspicious and Dean Fred Meyers, notifying him of UC Davis’ likely motivated by the content of Wilkes’ column. intent to reduce his teaching responsibilities The report asserted that the timing had been and cut funding for an exchange program he coincidental and that the column had not, in helped administer. An attorney for the UC fact, been published before Meyers sent his email Davis Health System later threatened that to Wilkes. This, however, contradicts CAFR’s Wilkes could be liable for “defamation” on the thoroughly documented report, in which Meyers basis of the column. not only admitted to reading the column before emailing Wilkes, but also stated that his email The UC Davis Academic Senate’s Committee on had been “intemperate” and that he wished he Academic Freedom and Responsibility (CAFR) had not sent it. investigated Wilkes’ case and, in May 2012, issued a comprehensive report finding that UC Davis Such inconsistencies as these raise basic questions had violated his academic freedom. The full Acaabout the credibility of UC Davis’ investigation, demic Senate unanimously passed a resolution and UC Davis faculty have heavily criticized calling on UC Davis to apologize to Wilkes and the report. FIRE’s serious concerns for Wilkes’ withdraw the threats made against his academic academic freedom have not been allayed, either, freedom. FIRE wrote to UC Davis expressing and we continue to help in the fight for academic its concerns for Wilkes’ rights, and UC Davis freedom at UC Davis.

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how to reach us... 170 S. Independence Mall W. Philadelphia, PA 19106 215.717.3473 tel 215.717.3440 fax www.thefire.org Facebook: facebook.com/thefireorg Twitter: @theFIREorg YouTube: youtube.com/thefireorg

ABOUT THIS PUBLICATION The FIRE Quarterly is published four times per year by the Foundation for Individual Rights in Education. The mission of FIRE is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. FIRE’s core mission is to protect the unprotected and to educate the public and communities of concerned Americans about the threats to these rights on our campuses and about the means to preserve them. FIRE is a charitable and educational tax-exempt foundation within the meaning of Section 501(c)(3) of the Internal Revenue Code. Contributions to FIRE are deductible to the fullest extent provided by tax laws.


'The FIRE Quarterly' Spring 2013