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A plea for Freedom of Speech to Fr. Jenkins

Kurt Peterson et al. | Thursday, March 18, 2010

Dear Father Jenkins:
We are graduates of the University of Notre Dame who went on to graduate from law schools around the country. We write to express our profound concern and disappointment regarding the University’s recent treatment of a group of students who engaged in free speech to inform their classmates and the public about Catholic Social Teaching and its relation to the University’s investments.
We understand that on Saturday, Feb. 20, Notre Dame students peacefully gathered in a parking lot outside of the Joyce Athletic Center to inform the public about the University’s investment in HEI Hotels and Resorts, a company that has been accused by the Office of General Counsel of the National Labor Relations Board of egregiously violating workers’ rights. Notre Dame Security agents forced the students to halt their leafleting and confiscated the leaflets. The University subsequently summoned three of the students to appear at a Disciplinary Conference presumably for their attempt to inform the public about Catholic Social Teaching.
As you know, the confiscated leaflets reference a complaint issued by the General Counsel of the federal National Labor Relations Board against the HEI-owned Sheraton Crystal City Hotel, alleging that HEI interrogated, threatened, suspended and fired mainly immigrant hotel workers who are organizing collectively to improve their working conditions. Some of HEI’s hotel workers, like Hermen Romero who works at the Sheraton Crystal City, earn as little as $9.59 per hour. In addition, HEI has raised the cost to employees for family health insurance to over $300 per month, making it harder for workers to pay for health benefits for their children.
The leaflet called on Notre Dame to adhere to Catholic Social Teaching, as articulated by the United States Catholic Bishops, which declares: “All people have the right to economic initiative, to productive work, to just wages and benefits, to decent working conditions, as well as to organize and join unions or other associations.” The leaflet also cited Pope John Paul II, who stated in Laborem Exercens that the union’s “task is to defend the existential interests of workers in all sectors where their rights are concerned. … [Unions] are indeed a mouthpiece for the struggle for social justice, for the just rights of working people in accordance with their individual professions.”
The students tried to leaflet outside of an event — a Catholic Mass — held at the Joyce Athletic and Convocation Center (JACC) that was open to the general public and was in no way a closed, private University gathering. The leafleters confined their peaceful speech activity to the JACC parking lot, and did not disrupt the Mass itself. Public forums and public parking lots are a traditionally respected site of free speech activity. Public places where communities gather have historically enjoyed the highest level of Constitutional protection under the First Amendment. The University should afford the same level of respect to non-disruptive free speech activity carried out in a church parking lot open to the public.
Notre Dame’s policy, which apparently requires student groups to obtain permission from the University prior to engaging in peaceful expressive activity, is a troubling a priori restriction on free speech. Such overbroad permitting requirements grant the University unlimited discretion to decide what categories of student speech should be forbidden on campus. It is precisely for this reason that federal courts have repeatedly overturned analogous governmental permitting schemes as unlawful limitations on First Amendment rights.
Even worse, the circumstances suggest that the University has applied its policy in an arbitrary manner, calling police officers to shut down a peaceful, non-offensive student gathering and threatening to sanction participants, simply because it disliked the content of the students’ message. According to the students, they have regularly leafleted at other student events without similar retaliation.
Further, as a recipient of federal educational funds, the University is no doubt aware that Title 20, U.S. Code § 1011a, “Protection of student speech and association rights,” provides that no student should “be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction” by an educational institution receiving federal financial assistance for participating in constitutionally protected speech.
Apart from these legal concerns about Notre Dame’s actions, the University’s mission is to adhere to Catholic Social Teaching. As such, we are stunned that it would deploy resources to suppress the dissemination of those basic tenets. The Church consistently and vigorously defends the right of all workers to organize a Union, and the right of all people to freedom of assembly, as pillars of this teaching.
The University’s prohibition of its students from leafleting on Feb. 20 and its decision to take the students to a Disciplinary Conference are deeply troubling from both a legal and an ethical standpoint. We strongly urge the University to refrain from future disruption of peaceful expressive activity by its students, and to terminate its unjustified disciplinary proceedings against any students who were involved. We believe that such courageous, principled students, who devote their time and energy to speaking out on behalf of others, act in the best traditions of the University of Notre Dame. They deserve to be recognized for their witness, not disciplined for it.

This column was written in collaboration by 1987 Notre Dame alumni and current lawyers Kevin Clegg, John Lavelle, Jeanne Bowman-Szromba, Kurt Peterson, Tom Szromba and Frank Losurdo. Kurt Peterson can be reached with regard to this column at [email protected]
The views expressed in this column are those of the author and not
necessarily those of The Observer.