by Adam Kissel
Ohio's Sinclair Community College (SCC) has announced that it will review an unconstitutional policy that prohibits all distribution of literature on campus by individual students. SCC banned a student from distributing literature about abortion, birth control, and breast cancer to her classmates after class. After FIRE intervened, the Chair of SCC's Board of Trustees, Lawrence Porter, stated that this policy and a second, conflicting policy would be reviewed.
SCC student Ethel Borel-Donohue's story began during National Breast Cancer Awareness Month last October, when she distributed roughly 15 flyers relating to National Breast Cancer Awareness Month to various students in her Probate Law I course after class. Borel-Donohue is a student in SCC's Paralegal Program. The flyers discuss possible risks of breast cancer related to birth control and abortion. (Of course, FIRE takes no position on the merits of the science discussed in the flyers.)
Borel-Donohue was summoned to the office of Judge Michael Brigner, Paralegal Program Chair, and they met on November 2, according to Borel-Donohue's written account. Brigner reportedly stated that a student had complained to him about being "offended by the material in the brochures." Brigner then told her she "had no right to hand out any materials to students in the classroom." On January 4, 2011, Borel-Donohue asked Brigner to verify the conversation, but he refused to correct her account, which he merely said was "not accurate" in a reply the same day.
On February 22, FIRE sent a letter to SCC President Steven Lee Johnson, making clear that "while SCC instructors may limit the expression of students during class time in the service of SCC's educational mission, such narrowly tailored restrictions for instructional purposes cannot lawfully be extended to restrict all distribution of literature outside of class time." In a 1979 decision striking down The Ohio State University's similarly broad restrictions on literature distribution, a federal district court in Solid Rock Foundation v. Ohio State University fully explained that absent "material disruption" or "substantial disorder," the distribution of literature on campus is student expression protected by the First Amendment, even if students complain about the content of the message distributed.
Ohio Assistant Attorney General and General Counsel Lauren M. Ross replied to FIRE's letter on March 16. Apparently in defense of SCC's unlawful action, Ross invoked a conflicting policy at SCC that bans all distribution of literature in "working areas" including "classrooms, laboratories, lecture halls, gymnasiums, libraries, offices, work stations, conference rooms, and corridors leading directly thereto which are an integral part of the work areas." SCC's Student Code of Conduct even more broadly bans "distribution ... of materials on Sinclair owned or controlled property," with the single exception of "recognized student organizations after registering with the appropriate college official." Ross did not indicate that SCC had any intention of reviewing or modifying either policy.
FIRE wrote Johnson a second letter on March 23, copying Ohio Governor John R. Kasich and Ohio Attorney General Mike DeWine. FIRE asked Johnson to bring SCC's policies into compliance with the First Amendment and to reply by March 30, but SCC did not respond.
FIRE finally wrote the Chair of SCC's Board of Trustees, Lawrence Porter, on May 2. Porter quickly responded, stating in a letter on May 10:
Sinclair officials have this issue under review. Sinclair's student code of conduct and access policy are being reviewed for possible modification.
Thanks to Lawrence Porter for lighting a fire under Sinclair Community College and, hopefully, saving it from the embarrassment of continuing to fight against the Bill of Rights.