Way back in the seventies Roy Daniel embraced Islam. Mr. Daniel is now in his sixties and everyone calls him Jihad. He’s been a devout Muslim for decades. Jihad Daniel divides his day between repairing computers on the campus of William Paterson University in Wayne, New Jersey and taking courses there, so he’s both an employee of William Paterson and a graduate student working on his master’s degree.
On March 7th 2005, Professor Arlene Holpp Scala, chairwoman of William Paterson’s Women’s Studies Department, spammed the entire student population with an invitation to attend a screening and discussion of the low-budget documentary Ruthie and Connie: Every Room in the House, a story about “the price two women paid to be themselves” according to the film’s promoters. It’s really about two married mothers who once attended the same synagogue and whose “passionate interest in each other suddenly turns their world upside down.” In 1974 Ruthie Berman and Connie Kurtz fall for each other, ditch their husbands and children and set up housekeeping together. Years later they make history by suing the New York City Board of Education to secure taxpayer-funded domestic-partner benefits for themselves and for all other city employees. Then “they literally fly out of the closet in full view of millions of Americans” on the Donahue and Geraldo shows. Professor Scala thought this story of domestic deception, betrayal and abandonment would be just the thing to dress up Women’s History Month at William Paterson University. Her spam touted “Ruthie and Connie: Every Room in the House, a lesbian story” and instructed those who wished to respond to her invitation “Please do not hit reply, click here, which sent replies to her university e-mail address.
When Mr. Daniel received his unsolicited invitation he wished only to be placed on Professor Scala’s do-not-call list. On March 8th he clicked where she told him to click and he sent her a terse 44-word response:
“Do not send me any mail about ‘Connie and Sally’ and ‘Adam and Steve.’ These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned.”
To Mr. Daniel it was clear that the Creator of the heavens and the earth had an intelligent design in mind and that same-sex couplings deviated from the master plan. Because it was the biological destiny of almost everyone to become a fully fledged heterosexual, exposing young minds to movies about women who trash their families and embrace one another “brings on confusion.”
Two days later, Professor Scala lodged a complaint with the university’s Office of Employment Equity and Diversity claiming that Mr. Daniel’s do-not-call message sounded “threatening” and accusing Mr. Daniel of violating the university’s nondiscrimination policy. She said she didn’t want to “feel threatened” at her place of work when she sent out announcements about events “that address lesbian issues.”
It fell to John I. Sims as Director of Employment Equity and Diversity to poke into the matter. Then, on June 15th , the president of the university, Arnold Speert, wrote a letter of reprimand stating that “the investigator concluded that since the Merriam-Webster dictionary definition of ‘perversion’ . . . is clearly a ‘derogatory and demeaning term,’ Jihad Daniel was guilty of violating state discrimination and harassment regulations. President Speert said his letter of reprimand would be entered into Mr. Daniel’s permanent employee file. Mr. Daniel stood convicted because his words seemed to violate the Interim State of New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace. This New Jersey policy prohibits “derogatory references” about any individual in a wide range of protected categories including race, creed, religion, color, national origin, ancestry, age, sex/gender, marital status, familial status, affectional or sexual orientation, gender identity or expression, domestic partnership status, atypical heredity, cellular or blood trait, genetic information, disability (physical, mental or imagined) and liability for service in the armed forces of the United States. Under this state-wide policy even a single “demeaning” word directed towards any member of these protected groups is punishable. If you can’t say anything nice . . . watch out!
As a devout Muslim who had worked at William Paterson University for 15 years Mr. Daniel felt it was proper to clearly state his reason for wishing to be dropped from Ms. Scala’s mailing list. As a graduate student in communication and media studies he felt certain that he had properly expressed his dissent. He believed that he had First Amendment rights, which he had learned about in a course on constitutional law at William Paterson University. In his own defense he has written “I responded to the unsolicited e-mail as a student and in conjunction with the tenets embodied in the three Abrahamic faiths, Judaism, Christianity and Islam. You cannot invite me to reply to something and then become offended because I do not respond the way you want me [to].”
But they were offended. The jackbooted schoolmarms had their skirts in a twist. Ms. Scala had spammed the campus with a missive that she knew was controversial. She had solicited responses; she had opened a dialogue. By ferreting out Mr. Daniel’s e-mail address and then injecting her invitation into his in box Ms. Scala had invited commentary. When she was told that her e-mails promoting homosexual causes were unwelcome Ms. Scala lapsed into victim mode. For a full professor and a smash-mouth feminist that’s pretty sad.
To Mr. Daniel the letter in his file was no small matter. After fifteen years of spotless employment he had been branded a harasser. His good name had been taken from him: “I said, ‘You’re kidding me, aren’t you?’ I didn’t harass anyone. I didn’t threaten anyone. I said, ‘Don’t send me any more e-mails because I’m a religious person and God does not condone that kind of behavior.’” According to a later hearing record Dr. Scala had found the words “Do not send me…” to be threatening.
Mr. Daniel appealed to WPU President Arnold Speert for relief only to be told that his claim to First Amendment protections was “beyond the scope” of the finding. To clear his record Mr. Daniel sought the assistance of the Foundation for Individual Rights in Education (FIRE). FIRE President David French was quick to respond: “Honoring the Constitution is not beyond the scope of any public official’s duty.” The foundation reminded President Speert that state college administrators “cannot simply choose to ignore the First Amendment when it becomes inconvenient.”
Things got stranger when New Jersey Attorney General Peter C. Harvey’s office offered its opinion that “speech which violates a non-discrimination policy is not protected.” Huh? Columbia-Law-educated Attorney General Harvey was asserting that the New Jersey Interim Policy trumped the United States Constitution. The truth is exactly the other way around: the U.S. Constitution determines whether state laws are lawful. The U.S. Supreme Court has clearly stated that unlawful harassment “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment,’” and that the “mere utterance of an . . . epithet which engenders offensive feelings in an employee” does not constitute harassment. Meritor v. Vinson, 477 U.S. 57, 67 (1986).
In an interview with New Jersy.com, full professor Arlene Holpp Scala declared intellectual bankruptcy when she asserted that Jihad Daniel’s speech was not protected because “he used the word ‘perversion’ and that’s discriminatory. There are kinds of speech that are not protected. You cannot cry ‘fire’ in a crowded theater.” She equated a reckless and life-threatening act with one student’s recitation of scripture in a private e-mail. How sad. Mr. Daniel’s expression of his values did not harm or threaten anyone.
In the Alice-in-Wonderland world of leftist speech codes words mean whatever self-styled victims say they mean and no evidence of intent is required to find the accused guilty as charged. If Ms. Scala feels threatened that’s good enough for the kangaroo court. Ms. Scala had pouted: “Mr. Daniel’s message to me sounds threatening and in violation of our university’s non-discrimination policy. I don’t want to feel threatened at my place of work when I send out announcements that address lesbian issues.” In other words, she wants to be controversial without provoking controversy, which is childish.
On September 14th, 2005 the William Paterson University student newspaper put forth a half-witted defense of Professor Scala’s position. Graduate student Robin Kavanagh offered that Mr. Daniel should have kept his mouth shut because, as an employee of the university, he was bound to abide by the thought-control edicts of the Interim State of New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace. Just like New Jersey Attorney General Peter Harvey, Mr. Kavanagh can’t get it through his head that every American law and regulation defining the powers of agents of the state must square with the United States Constitution. There are no exceptions. The fact that Jihad Daniel was an employee of the university changes nothing. Furthermore, he was spammed by Ms. Scala in his capacity as a student and he responded as a student, not as an appendage of the school’s tech-support team.
Kavanagh goes all wobbly at the thought of poor Ms. Scala’s feelings: “If this is how she felt, then the citation Daniel received was just. Even though it was a technical infraction of the codes of conduct, it was an infraction all the same . . .” In other words, to Kavanagh’s way of thinking it matters not a whit that Daniel had no intention of threatening Scala. The mere fact that Daniel’s words caused Ms. Scala displeasure was reason enough to punish him. Somehow Ms. Scala had acquired a right to never experience an unpleasant emotion. Like all self-styled “victims” Professor Scala assumed no personal responsibility for the governance of her own emotions.
To quote Greg Lukianoff, FIRE’s director of legal advocacy: “William Paterson University is knowingly disregarding the U.S. Constitution. No one here was ‘harassed’ or ‘threatened,’ as defined by the law. The university simply strongly disliked a student’s point of view.” That’s not just his opinion. A query from FIRE elicited a response from the United States Department of Education over the signature of Gerald A. Reynolds, Assistant Secretary of that department’s Office of Civil Rights. Here are three quotations from that letter:
“I am writing to confirm the position of the Office of Civil Rights (OCR) of the U.S. Department of Education regarding a subject which is of central importance to our government, our heritage of freedom, and our way of life: the First Amendment of the U.S. Constitution.
“OCR has received inquiries regarding whether OCR’s regulations are intended to restrict speech activities that are protected under the First Amendment. I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution. OCR has consistently maintained that the statutes that it enforces are intended to protect students from invidious discrimination, not to regulate the content of speech. Harassment of students, which can include verbal or physical conduct, can be a form of discrimination prohibited by the statutes enforced by OCR. Thus, for example, in addressing harassment allegations, OCR has recognized that offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR . . .
“Some colleges and universities have interpreted OCR’s prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive . . .
“In summary, OCR interprets its regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles. No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights. There is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment. With these principles in mind, we can, consistent with the requirements of the First Amendment, ensure a safe and nondiscriminatory environment for students that is conducive to learning and protects both the constitutional and civil rights of all students.”
Every one of the thought-control commissars at William Paterson University has ready access to this sort of guidance from the Department of Education. They are simply flouting the law and hoping that students will not call their bluff. This dirty tactic usually works, but not always. The president of FIRE, David French, tells us that “One of the more interesting aspects of our case submissions is that a disproportionately high number come from ‘non-traditional’ students – those students who are older, married, or often have substantial work experience . . .
“I think there is good reason for this phenomenon: nontraditional students have ‘real world’ experience and are less easily intimidated by academic threats than traditional undergraduate and graduate students. . . Since academic life is all many traditional undergrads know, academic success means everything.
“Additionally, for many traditional students, the atmosphere of oppression and indoctrination that dominates so many of our universities is a mere extension of their high school experience. For these students, this is just the ‘way the world works,’ and they are unaware that alternatives exist (or even that the First Amendment actually prohibits many university policies and procedures). When I speak on campus, I am always amazed at the number of otherwise politically aware students who say, ‘I had no idea that the university isn’t supposed to do that.’ On-campus speeches always result in a litany of tales of censorship.”
So William Paterson’s President Arnold Speert was just blowing smoke when he declared that all constitutional arguments were “beyond the scope of this finding” and that “the assessed penalty of a written reprimand must, therefore, stand as issued.” The fact that New Jersey’s politically ambitious attorney general would deliberately distort the facts to avoid displeasing the well-organized, well-financed and politically-savvy forces of homosexual empowerment renders Peter C. Harvey unfit for any public office.
Greg Lukianoff, FIRE’s director of legal advocacy, has it exactly right: “William Paterson University is knowingly disregarding the U.S. Constitution. No one here was ‘harassed’ or ‘threatened’ as defined by the law. The university simply strongly disliked a student’s point of view. As the Supreme Court wrote in its seminal opinion in West Virginia State Board of Education v. Barnette, ‘freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.’ William Paterson’s administration would be well served by reading this compelling opinion. . .
“Just as the university is free to sponsor events discussing the issue of homosexuality, Mr. Daniel must be free to dissent. To claim that a nondiscrimination policy trumps his First Amendment rights is dishonest and unlawful. William Paterson and the attorney general have decided that Mr. Daniel is guilty until proven innocent. FIRE will continue to fight such illiberal actions until Mr. Daniel’s rights are vindicated.”
Things got really dirty when Professor Arlene Holpp Scala implied that Mr. Daniel might be a public menace. The Women’s Studies chairwoman said of Mr. Daniel’s e-mail “It creates a hostile environment. I teach about violence, and I know that violence is oftentimes preceded by verbal attacks.” First she establishes herself as an expert (“I teach about violence”) and then she casts suspicion on Mr. Daniel by mischaracterizing his e-mail response to her as a “verbal attack.” In truth, he expressed an opinion and told her to stop pestering him. He told her to buzz off. Ms. Scala is an echo of Hillary Clinton who behaves like a tough know-it-all when it suits her purposes but instantly shifts into delicate-flower mode when someone challenges her. Back in Arkansas, Hillary made a habit of showing up at the rallies of Bill’s rivals and hectoring them with tough questions from the audience, but when her rival for a senate seat in New York merely walked across the stage during a debate and offered her a piece of paper his harmless act inspired countless nonsensical screeds in the liberal media about how Rick Lazio had “threatened” Hillary by “invading her space.” There was not one mention of her behavior in Arkansas. If Ms. Scala can’t abide contradiction, then she should quit the rough and tumble of political discourse. If she’s using the grievance process as a tool of repression, then she is unfit to hold a teaching position.
Please note that Mr. Daniel had worked at William Paterson University for fifteen years without incident. The staff knew that he was not the violent sort. The suggestion that he was about to become violent was just a smear. A front-page story in the New Jersey Herald News quoted Steven Goldstein, chairman of Garden State Equality, a gay and lesbian political action group: “When someone speaks hatred in America, that person has to face the consequences of his actions.” By “consequences,” Mr. Goldstein is referring to a star-chamber conviction by a kangaroo court that flouted the United States Constitution, not rebuttal. Is every criticism of gay behavior hateful? For example, are people who find flamboyantly effeminate males aesthetically repellant haters? In one episode of Will & Grace Will expresses his discomfort with his friend Jack’s effeminate mannerisms. “He’s such a fag,” Will laments to Grace. Will is also gay but he values a different sort of male deportment. Is he a hater for expressing his preference?
Mr. Daniel believes that homosexuality deviates from a divinely inspired master plan. He believes that films that look favorably upon lesbians who create traditional families and then shatter them will only confuse inexperienced young people. These are popular beliefs. To quash the free expression of everyone who holds such beliefs is to abandon the highest ideals of the American experiment. The proper response is rebuttal.
Jihad Daniel appealed his punishment through his union’s grievance process. The Foundation for Individual Rights in Education took William Paterson University to task in the media. On November 16th, 2005 there was yet another hearing at which Jihad Daniel was ably represented by the Communications Workers of America Local 1031. On December 6th he received notice that the hearing officer had determined that there was no substance to the accusation of harassment; his one-time expression of personal religious belief was not “harassment.”
The fact that Mr. Daniel received support from his union does not make his case one of workplace speech alone. Professor Scala’s e-mail invitation was unmistakably curricular and Mr. Daniel responded to it as a student. Therefore, the finding in his case applies to student free speech. William Paterson is not a private school; its staff members are agents of the state and as such they have no lawful power to gag people who don’t share their moral and political assumptions. Furthermore, students don’t cease to be full citizens when they matriculate. The American experiment in freedom doesn’t end at the schoolhouse door.
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Thomas Clough
Copyright 2006
January 10, 2006