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December 1, 2005 [feather]
More on Penn free speech flap

The University of Pennsylvania appears to be steadfast in its intention to punish an engineering junior for photographing two fellow students openly having sex in their dorm window and then posting the photos on the internet, despite the fact that everyone who has been asked appears to think the university is way out of line in doing so. Both the Chronicle of Higher Education and InsideHigherEd.com have picked up the story. The latter reports that concerns about another Water Buffalo Incident are running high--so much so that Alan Charles Kors, the history professor who in 1993 defended Penn student Eden Jacobowitz against egregious sanctions for protected speech, has offered to defend the student Penn is presently disciplining.

Kors went on to co-author with Boston civil liberties lawyer Harvey Silverglate The Shadow University, a landmark study of how America's colleges and universities routinely violate the civil liberties of students and faculty. FIRE (the Foundation for Individual Rights in Education) was founded in the wake of The Shadow University, and has done enormously important work defending First Amendment rights on campuses where administrators disrespect and dishonor them.

Kors spoke with both the Chronicle and InsideHigherEd. Here's what he had to say to the Chronicle:

Mr. Kors said on Wednesday that although the university is a private institution and is not legally held to the same First Amendment standards as a public institution, university policies protect students' right to free expression as if it were. Taking a photograph of a public event and then disseminating it is a matter of free expression, he said.

"That's university law," Mr. Kors said. "The very existence of an investigation of protected speech is chilling."

If anybody did anything wrong, he said, it's the students who were having sex near a window for all the world to see. He added, however, that he hopes the university doesn't investigate those students either.

"Don't make love in an open window," Mr. Kors said. "I wish that people had more respect for privacy, but there are times when it's appropriate to close the blinds."

And here's what he had to say to InsideHigherEd.com:

In Jacobowitz's case, Alan Charles Kors, a professor of history at the university and co-author of The Shadow University, successfully helped the student defend himself. Ultimately, in September 1993, the executive committee of the university's Board of Trustees passed a resolution that guaranteed policies that supported the fundamental importance of freedom of speech and expression for students, explained Kors Wednesday.

University administrators, Kors said, did not want to give the perception "that students at Delaware Community College had more First Amendment rights than University of Pennsylvania students."

On Wednesday, hoping to head off another "water buffalo" situation and to draw attention back to the 1993 resolution that would appear to vindicate the photographer, Kors became a player in the latest case centered on student freedom at the university by officially becoming an adviser to the student.

"This whole situation was settled back in the early 1990s," he said. "If administrators pursue this, they will make a fool of a great institution. They will have shown an incredible failure to protect the liberty of students at the University of Pennsylvania."

"If they didn't want pictures taken of them," asked Kors, "why didn't they just close the blinds?"

And here is what Kors told the Daily Pennsylvanian:

"It is as outrageous as a case could be," he said. "If a student at Penn does not have the right to take a photograph of what is in plain sight ... then you have no rights. And I don't want to teach at a university where students have no rights."

Kors added that the photographer did not perform any actions that are out of line with University policy.

"In 1993 and 1994, this University promised and made it public policy that University of Pennsylvania students would have at least the same rights as students in public universities that are governed by the Constitution," he said.


Kors said, however, that disciplinary action is ridiculous considering that the student acted completely within his rights.

"Penn students have the right to free speech and free expression," he said. "The University appeared to have remembered that lesson for a long time, and now it appears to have forgotten it."

The accused student has declined to accept the punishment Penn has proposed for him. In response, Penn administrators are scheduled to meet with the students involved in this case today. Here's hoping they adjust their punitive and outrageous tactics before then.

posted on December 1, 2005 8:34 AM


I suspect that the bottom line here is that key administrators are terrified that the sex-in-the-window incident will reflect on the university's reputation -- so they're shooting the messengers. When I was in college, there was a policy against "lewd conduct" in dormitories, and it was occasioanlly enforced. You had to be really, really dumb enough to get caught, of course. (There was a well-known case in which the dean determined that if a woman's undergarment was in a position with both ankles inside, it was not lewdness, but if one ankle was outside, it was. The student was prevailed upon to explain the position of the ankles "on his honor"; he did, and was thrown out of the college.) Sounds like these students are the rightful Darwin award nominees in this case, but after all, we've made such great strides in non-prudery since the days when lewd conduct was a disciplinary matter that we must now go after students unwise enough to take photos of public sex.

Posted by: J at December 1, 2005 11:16 AM