Free Speech Zone: J'Accuse

This is one of two protected disclosures that I had submitted on May 21, 2015 accusing YCCD employees of retaliation against me and one other faculty member for standing up for a student who was prevented from passing out constitutions on constitution day.

You can read the full text either by clicking here for a PDF or by viewing the full post below:

J’Accuse: Retaliation in the Wake of the MJC Free Speech Incident

W. J. Holly, Ph.D. (18 years an Adjunct in Philosophy at Modesto Jr. College)

The following letter provides a brief account of the incident during which student Rob Van Tuinen was prevented from passing out Constitutions on Constitution day. It also describes and fully documents the shameful aftermath during which YCCD Employees publically lied about the rules that were in place, and who retaliated against Leslie Beggs and me for publically criticizing their stand on the free speech issue. Moreover, it documents the bizarre restriction they placed on my teaching – forbidding me to share any of my writings with my students unless those writings had been published in peer-reviewed journals.

Regarding the matters detailed below, I have applied for protection under YCCD Policy 7700, Whistleblower Protection (see Exhibit K below) and have asked for an independent investigation into violations of State and Federal law, California Education Codes, YCCD Policy, and mutually binding contracts between YCCD and YFA. I explain below my reasons for thinking that serious violations of the law and District Policy have been committed by Mr. Bill Anelli (MJC Philosophy Instructor), Debra Bolter (YFA President), Cecelia Putnam (former Dean of BBSS), Susan Kincaid (Vice President of Instruction), MJC President Jill Stearns, YCCD Chancellor Joan Smith, and possibly other YCCD Employees. I believe that most (not all) of the Trustees should have more faithfully exercised their duty of oversight over the Administration in several of these matters.

Since I am charging that the Chancellor has violated law and District Policy, it is the Board Chair, Mr. Don Viss, who is responsible for ensuring that a prompt and complete investigation is made by an individual with the competence and objectivity to conduct the investigation. I hope that all my readers will join me in offering our support to Chairman Viss in this unhappy task, and that we insist upon complete transparency and impartiality. Given that Policy 7700 encourages those making protected disclosures not to do so anonymously, I am making my complaint in the least anonymous way I can by emailing this to all at MJC.

To those who might consider retaliating against me or against any persons who are willing to cooperate in this investigation, it should be noted that it is a crime punishable by up to one year in the county jail and $10,000 to retaliate against anyone filing (or cooperating in an investigation of) a protected disclosure I also am asking the Academic Senate to investigate the charges detailed below, pursuant to the Form given on page 70 of the Faculty Handbook (Academic, Contractual and Working Conditions, Professional Problem Reporting Form). I also am filing a complaint with the CCCCO, which also will be investigating my complaint.

Some people will ask why I am not following normal grievance procedures. The first answer to this is that I did follow grievance procedures as far as I could, until it became clear that those responsible for justice here (even my YFA President) could not be trusted. More to the point, however, is that I am not filing a grievance here. Under YCCD Policy 7700, I am accusing several YCCD employees of violating binding contracts, and of violating state and federal laws and regulations. I am requesting an investigation into their crimes.

A friend of mine worries that some will think my action here is a “personal vendetta” or that I am just “seeking vengeance.” Of course it is true that I get a tad angry when I am subjected to retaliation, or when my sacred liberties are trampled. But, it angers me equally when I see people in power putting the boot of censorship on the necks of other citizens. Those who trample the rights of our fellow and sister citizens do trample the rights of us all. People who do not respect the freedoms and the rules that have been developed to foster the pursuit of truth at our college – such persons should not have positions of power over other human beings.

Let me emphasize that the retaliation that I have suffered did not end with the settlement of Rob's lawsuit (which was a Civil Rights victory). The harm that I suffer because of the Administration’s retaliation is a continuing harm in at least three respects: (a) The hostile, defamatory, and threatening teaching evaluation I received still remains as a black mark in my personnel file. (b) The restrictions on my Academic Freedom continue to remain in force, despite the fact that they violate YCCD Policy, the YCCD/YFA contract, and are contrary to the ideals expounded in the Faculty Handbook. Until those illegal restrictions are lifted and renounced by those who put them into place, MJC remains in continuing violation of the relevant YCCD Policy and Contractual agreements. And (c), until those who willingly violated CA Ed Code, YCCD Policy, and YFA agreements are held to account for their illegal actions, I live in constant fear of renewed retaliation. I remain completely at their mercy while they retain unrestrained power to give me undesirable teaching assignments, hostile teaching evaluations, or simply to terminate my employment, as soon as they think that FIRE is no longer watching. These threats and injustices have caused me irreparable injury and harm. Time that I could have spent writing philosophy has been consumed in research and intense anguish, trying to find a place of safety in this hostile work environment. Here is the story.

1. A Brief History (The Constitution Incident, and the Retaliation):

On September 17, 2013 (Constitution Day), MJC student Robert Van Tuinen was prevented from passing out copies of the U.S. Constitution on East Campus of the Modesto Junior College, Modesto, CA. Rob was stopped by campus security because MJC Policy then required students wanting to engage in free speech to get permission 5 days in advance, and to restrict those activities to a small free speech area. The incident was video recorded and later posted on you-tube, where it went viral. FIRE (Foundation for Individual Rights in Education) immediately contacted Jill Stearns, President of MJC, offering to help MJC bring its speech policy into line with the First Amendment. This offer was rebuffed, and Stearns tried to pass the incident off as a “misunderstanding.” So, with help from FIRE, Rob filed a lawsuit against YCCD. At the end of February 2014, Rob prevailed. The out of court settlement awarded him $50,000, most of which went to pay legal fees. Now that the lawsuit has been settled, students wishing to exercise their First Amendment rights no longer need to get permission, nor are they restricted to “free speech areas.” This is a wonderful civil rights victory.

Before the lawsuit was settled, Leslie Beggs and I separately published essays mildly critical of the handling of the Constitution Day incident, and both of us experienced retaliation for daring to voice unsanctioned views. On 9/22/13, Leslie wrote an Op Ed in the Modesto Bee defending Rob. But there was not a whisper of the incident on the faculty site (webmail.yosemite.edu) where we get our emails. President Stearns’ weekly “MJC Reflections” to all faculty made absolutely no mention of the incident or the lawsuit. So, I was totally unaware of the incident until, three weeks later, I saw it on national news!

Struck by disbelief that this could be happening here, I went to the internet. Only a few clicks away (thefire.org/case/930), I found Rob’s famous video, a copy of the lawsuit, Jill Stearns' public statement on the incident, MJC speech codes, and links to dozens of related articles and postings. It soon became clear to me that Stearns had seriously misrepresented MJC’s speech policies, and that they needed to be changed. So, I spent an entire day writing a 9 page (single spaced) commentary on the incident and on the administration’s handling of it. At 11:04 pm., Oct. 14, 2013, I sent my essay to Everyone at MJC -- which included all faculty, administrators, and staff. While my essay was mildly critical, I believe that it was respectful in tone. My reference to President Stearns, for example, began with these words: "It seems to me that we should give President Stearns our full support in rectifying this unfortunate situation -- a situation probably not of her own making, since she likely is not the person who made the offending rules, and God knows she has had a more than full plate of responsibilities during her tenure here."(My email is reproduced below as Exhibit A: Dear Colleagues.)

The retaliation occasioned by my letter in defense of Rob’s First Amendment rights was done in violation of California Education Code 66301 (a) and (f). In my case, the retaliation took the form of giving me a hostile and threatening teaching evaluation. And, following a suggestion make by Bill Anelli, I was (and remain) explicitly forbidden to make available to my students any of my writings that have not been published in a peer reviewed journal. This restriction on my teaching is a clear violation of my Academic Freedom -- and it plainly violates YCCD Policy 4030 on Academic Freedom. It also violates the YCCD/YFA (Yosemite Faculty Assn.) agreement on at least two counts (It violates Contract article 34.1 that affirms Academic Freedom, and it violates article 34.1.4 on Intellectual Property – where YCCD and YFA mutually agree to encourage faculty to develop new course materials. It also violates C-2: Statement of Professional Ethics, p. 101 of the Contract that states in part, “faculty members … respect and defend the free inquiry of their associates.”)

When I wrote a long objection about my hostile evaluation to BBSS Dean Cecelia Hudelson-Putnam, her only response was, "Thanks Bill. I will print this out and put it in your personnel file." (It should be noted that she apparently has not done this, as my “rebuttal” is not in my personnel file). The formal evaluation stipulated that I would be re-evaluated the following semester to "ensure that he has met the conditions for improvement identified above." The clearly implied threat was that I would lose my job if I did not follow the illegal restrictions they had placed on my teaching. The clear intent was to have a chilling effect on my speech, as it effectively has done for some time, because I do need my job.

When I reached out to my Union for help regarding this retaliatory evaluation of my teaching -- and this violation of my Academic Freedom, Debra Bolter (the YFA President) violated confidentiality. Without even bothering to talk to me about the nature of my complaint, she immediately went behind my back and talked to my Dean. Bolter emailed me back that I would be well advised to accept the conditions placed on my future employment because I am an adjunct faculty member, and the Dean is under no obligation to renew my contract. Simply put, this means that no matter how many years we have taught at MJC, adjunct faculty do not have reassignment rights. So, Bolter was telling me: submit to this violation or lose your job. This betrayal by my Union President, and her refusal to help me file a grievance, deprived me of due process, since part of my rights guaranteed by the YCCD/YFA contract depend upon good faith assistance by my union. Moreover, this withdrawal of Union support violated my rights under the Weingarten Act – the right to have a Union representative present when meeting with an Administrator. That right is rendered meaningless if the Union is in the pocket of the Administration.

II. The Motive for the Cover-Up -- Protecting their False Narrative.

Before documenting how the administration retaliated for my "Dear Colleagues" email, we first should establish motive. Since I am indeed accusing several YCCD employees of violating CA Ed Codes, YCCD Policies, and YCCD/YFA contract agreements, a motive needs to be identified and established for their violation of law and of contractual agreements. Of course it is true that some administrators simply resent challenges to their assumed authority -- they just don't like to be questioned. Moreover, some subordinates are such low types that they are willing to do "dirty work" for the administration (be their "hatchet ladies"), perhaps in hopes of future rewards such as Deanships or other favors. However, one motive stands out as the salient reason why this Administration wanted to punish its critics. Their motive was to silence public discussion of the incident, because they were engaged in a cover-up from the very beginning. Any public examination of their reaction to the Rob incident would reveal that the administration was not being truthful about YCCD Policies. So, they used retaliation to silence their critics.

So, exactly what policies were used to prevent Rob from handing out copies of the Constitution? The clearest statement of those policies can be found in "Modesto Junior College Guidelines and Procedure for requesting College Facilities for Free Speech" (see Exhibit D below). The very title of this document makes clear that persons wishing to exercise Free Speech must request the use of free speech facilities. Its first paragraph states that "Colleges of the District are non-public forums, except for those areas on each campus designated as 'free speech areas,' which are deemed limited public forums." The second paragraph informs us that MJC has "established such regulations and procedures to provide students and community members with the opportunity to exercise their right of expression. MJC shall identify appropriate locations on campus to be used as a limited public forum." It then tells us that the limited public forum on MJC (East Campus) is the area generally available to students and the community, designated as the stage area northeast of the quad.

On the second page of that document, under Guidelines, section 8, we are told, "Refusal to cooperate with the above guidelines will subject the user to possible punitive action, including, but not limited to … denial of further use of Free Speech Areas; Discipline; Probation; Suspension; Expulsion and/or Removal from campus. Under Procedures, we are told that "To use the free speech areas, student groups or individuals must submit a completed "Limited Public Forum Request Form" to the Office of Student Development and Campus Life for approval not less than five (5) working days prior to the proposed date of use." Moreover, no individual or group was allowed to reserve free speech areas more than eight (8) hours per semester. And, "No last minute requests are permitted."

So, free speech is allowed only in the designated Free Speech Area, and a person wanting to reserve the area for the exercise of her free speech needs to apply at least 5 working days in advance by filling out the "Limited Public Forum Request Form." These facts about MJC Policy in place at that time are incontrovertible. Equally incontrovertible is that Jill Stearns immediately issued public statements that grossly misrepresented these facts in a deliberate attempt to mislead the public that she serves.

President Stearns' statement (see Exhibit B) was posted on the MJC website within a week of the incident, and was the main document clarifying MJC's position. In her second sentence, she tells us that MJC and YCCD "immediately launched a comprehensive review of the incident." I believe that this statement is false by any common understanding of what "comprehensive review" means. If you submit a FOIA asking for a copy of that "comprehensive review," you will find that no such review was written up. That "comprehensive review" never existed.

Proof that no “comprehensive” review was made is this: The most cursory perusal of the rules in place would have made it clear to Stearns and Smith that the rules in fact did restrict free speech on East Campus to the small free speech zone and did require permission 5 days in advance.

Continuing in her attempt to mislead and deceive the public, Stearns (second paragraph) states: "Upon review, it was determined conversation between the student and staff was confusing regarding distribution of materials on campus. … We deeply regret this misunderstanding. College staff have been provided the policy and procedure for review and follow-up training is planned to further ensure that clear and accurate information is provided in the future." So, (1) Stearns is trying pass the incident off as a misunderstanding, and (2) she is trying to blame this alleged confusion and misunderstanding on the college staff who "have been provided the policy and procedure for review" and who will be provided follow-up training to "ensure that clear and accurate information is provided in the future.

It is bad enough to lie about there being a comprehensive review, to lie about what restrictions on free speech actually were in effect, and to lie about there being a “misunderstanding” when there was no such misunderstanding. But, what Stearns does next is entirely despicable: She falsely blames the incident on the security guard and on Administrative Specialist Christine Serrano. She throws her blameless employees under the bus! In point of fact, the security guard and Serrano explained the guidelines exactly as they were written and exactly as they were meant to be applied. What the YouTube video reveals is not poor communication about good policies, but accurate communication about bad policies.

A former student of mine who knows Christine Serrano says that she was very angry that they blamed the incident on her -- by falsely accusing her of misinterpreting the guidelines. What she told Rob in the video was exactly what the guidelines explicitly required -- requesting permission 5 days in advance, and being restricted to the small concrete area in the quad. I believe that, under oath, Christine Serrano will refuse to admit that she was doing her job incorrectly -- she will say that she was forced to take a fall for the administration. I believe that when Stearns did this to Serrano, she was not acting alone. I believe that this deception was coordinated by the Chancellor, Joan Smith, who micro-managed everything, with legal advice from the beginning, and who herself tries to blame Serrano even after the lawsuit was settled.

Stearns continues her deception in her next paragraph: “As described in the District's official Board Policy and Administrative Procedure, students may distribute printed material on campus in areas generally available to students and the community as long as they do not disrupt the orderly operation of the college.” This is simply false. The rules clearly state that students must request permission five days in advance (failure to disrupt orderly operation of the college is NOT the only prerequisite).

Stearns goes on to say, “There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.” This claim that nobody is required to register weeks in advance is not even relevant to the indisputable claim that students were required to register five days in advance. However, given that others had already booked the free speech area, Rob was told that he indeed would have to wait until the next month to use that small marked area. And, the rest of Stearn’s sentence here is false as well. There absolutely IS a requirement that student speech activities on East Campus are restricted to the small marked areas. (See Exhibit D below).

In fact, the Administration tries to confuse the public by playing with words here. It is true that areas designated as “Free Speech Areas” must be areas “generally available to students and the community.” However, it is FALSE that all “areas generally available to students and the community” are Free Speech Areas. And, it is FALSE that Free Speech Areas can be used for speech without getting reservations at least 5 days in advance.

In the rest of her comment on the incident, Stearns finds it “troubling” to see the college subjected to “allegations of censorship.” She uses the word “allegations” to falsely insinuate that Rob was not subjected to censorship. She continues this dishonesty in her final paragraph by referring “to those who were offended by the appearance of censorship.” It is unvarnished dishonesty to call this the “appearance” of censorship. What was done to Rob was censorship pure and simple, not just the appearance of censorship.

In sum, President Stearns’ public statement on the Constitution Incident contained about eight (8) distortions of the truth. In my Dear Colleagues letter, I called attention to those eight misrepresentations of the facts without calling her a liar.

It should be noted as well that the Administration likes to divert attention from the wrongs they have done by playing the victim. For example, Stearns complains that “it is disheartening that some of the public response has diverted so drastically from the principles of civility and in fact has become directed at individuals. Staff have been called morons, idiots, whores, and Nazis.” Playing the victim here is only meant to divert attention from the fact that MJC Policies were used to trample our First Amendment rights. Of course we are against incivility and name-calling. But, we should put that into perspective. Nobody in these United States has a constitutional right not to be called a moron, an idiot, or a whore. In fact, I think that the First Freedom gives all of us the right to be uncivil and to engage in name-calling. While Stearns whines about name-calling and incivility, she defends MJC rules that violate our Constitutional right to freedom of speech. Violating our civil rights is far more serious than mere incivility.

In an Op Ed in the Modesto Bee, March 4, 2014, immediately following settlement of the lawsuit against YCCD, Chancellor Joan Smith issued a statement containing several untruths.

First, Smith complained that MJC was the victim of a "sue first, ask questions later" policy. The truth of the matter is that MJC received a letter from the Foundation for Individual Rights in Education (FIRE) within two days of the incident, explaining how the Guidelines were unconstitutional, and offering to help revise the unconstitutional rules. That offer was rejected.

Second, Chancellor Smith objects to calling Christine Serrano an administrator – despite the fact that Serrano was listed as an “Administrative Specialist” in the 2013-2014 YCCD Staff Directory. Why is this distinction so important to Smith? It is because Smith too wants to throw Serrano under the bus. Smith wants to continue Stearns’ fabrication that Serrano misunderstood and misrepresented MJC speech policy. It is easier to pin the blame on Serrano if Smith can paint Serrano as being nothing more than a lowly, clerical helper, not an administrator. The fact of the matter, however, is that Serrano (a proud woman) was doing her job properly, and she explained MJC policy exactly as it was written and as it was meant to be applied.

Perhaps the most amazing cover-up attempt of all is Smith's claim that MJC did not prevent Rob from handing out Constitutions! Unbelievable. How does Smith think she can get away with telling such a Whopper? 240,000 people watched the video of the security guard preventing Rob from handing out Constitutions. Nearly a quarter million people have watched the security guard twice telling Rob that any student who is passing out anything whatsoever on campus must obtain prior permission. They saw Serrano tell Rob to read the Time, Place and Manner guidelines. She tells him, "We are not telling you that you can't. -- You just need to follow the guidelines." And Smith well knew that the guidelines required getting permission at least 5 days in advance, and that speech activities were restricted to the tiny stage area northeast of the Quad. And she knew full well that if Rob had continued to pass out Constitutions then and there, he would have been subject to "Discipline, Probation, Suspension, or Expulsion." Is Smith suggesting that MJC was just kidding around when it wrote that into the guidelines? Free to get oneself Expelled?

Smith even tries to argue that Rob was not prevented from handing out Constitutions because he could have done it at an event on the other campus. This is delusional. Whatever was being done elsewhere, Rob was being prevented from handing out booklets on East Campus.

It should not be allowed to pass without mention that Smith issued a public announcement on Feb. 26th that the lawsuit had not yet been settled – when Van Tuinen and his lawyers had been told that she already had signed off on it two days earlier! Nan Austin of the Modesto Bee called her on this inconsistency.

Finally, Smith remarks that the Court in Fresno did not find that MJC's policies were unconstitutional. This makes no sense! Of course no such finding was made because MJC settled out of court. Apparently Smith still does not understand why it is unconstitutional and just plain wrong to require citizens to get advance permission to speak, or to restrict us to tiny "free speech" areas, to exercise our First Amendment liberties.

The U.S. Constitution is unambiguous. The First Amendment reads: Congress shall make no law … abridging the freedom of speech, or of the press.

If the First amendment had been written by these YCCD Administrators, it would read: Congress shall make no law abridging freedom of speech, so long as you request permission to speak at least five (5)days in advance, and so long as you restrict your speech to governmentally designated Free Speech Areas. How insulting to free men and free women!

At this point, I believe that I have established that the Administration had a strong motive to retaliate against me and against the other faculty member who (with restraint and civility) criticized their position on free speech. I have no idea why they wanted to publically misrepresent the truth in these matters, or why they thought they could get away with it. However, most of the Board of Trustees utterly failed in their duty to exercise oversight over Stearns and Smith, and there was no faculty outcry, so I suppose they were right that they could get away with misrepresenting the facts.

I do not know whether or not it is against the law or a violation of YCCD Policy for an employee simply to tell a public lie. I am only pointing out that telling lies does provide a motive to retaliate in order to silence ones critics. Moreover, their proven willingness to lie and to throw innocent employees under the bus to serve their own purposes indicates that they are just the sort we would expect to retaliate.

Before moving to the next section in this indictment, I would like to share some relevant excepts from page 43 of the YCCD Leadership Team Handbook, gleaned from the ACCCP Statement of Ethics (underlines mine):

“Ethical behavior is often defined as "right or "good" behavior as measured against commonly accepted rules of conduct for a society or for a profession. The ethical person is often described in absolute terms as one who is fair, honest, straightforward, trustworthy, dispassionate and unprejudiced. If, however, one is inconsistently fair or honest, one loses credibility and is perceived to be unethical. The ethical person must be conspicuously consistent in the exercise of integrity to sustain the credibility that is an expectation of office.

The credibility of college administrators depends upon whether they are perceived as honest men and women. If integrity contributes to credibility, then ethical behavior is a singular prerequisite to successful management. When people are convinced that public institutions are administered by honest individuals, questions of credibility and demands for public accountability rarely arise.

Expectations for Ethical Behavior

Administrators of community colleges shall be committed to the principles of honesty and equity. They shall not seek to abridge for any purpose the freedoms of faculty, staff and students.

As appointed managers of the college community, administrators … shall exhibit openness and reliability in what they say and do as leaders.

The consistent exercise of integrity is ethical behavior.”

I think these are laudable sentiments. It is important as well that this is the Statement of Ethics that is issued by the institution upon which we depend for our accreditation. Let me narrow down the second paragraph and put it in bold letters:

The credibility of college administrators depends upon whether they are perceived as honest men and women. … ethical behavior is a singular prerequisite to successful management. When people are convinced that public institutions are administered by honest individuals, questions of credibility and demands for public accountability rarely arise. … Administrators of community colleges … shall not seek to abridge for any purpose the freedoms of faculty, staff and students.

III. The Retaliation Against W.J. Holly

               The semester in which Rob was prevented from passing out Constitutions happened to be the semester in which I was due for my once-every-three-year teaching evaluation.  In what follows, I will detail evidence that the hostile evaluation I received was in retaliation for my “Dear Colleagues” letter defending students engaging in conduct protected by the First Amendment.  I also will explain how my evaluators violated my Academic Freedom, in violation of YCCD Policy and YFA contract.

               It first should be noted that it is a violation of California Education Code 66301 (f) to retaliate against an employee for defending a student’s first amendment rights (See Exhibit E below).  66301 clearly states: (a) Neither … the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution… (and)(f)

        An employee shall not be dismissed, suspended, disciplined,

reassigned, transferred, or otherwise retaliated against solely for

acting to protect a student engaged in conduct authorized under this

section, or refusing to infringe upon conduct that is protected by

this section, the First Amendment to the United States Constitution,

or Section 2 of Article I of the California Constitution.

        The first part of my evaluation process went smoothly.  I was informed that Philosophy Professor Stan Spector would do the peer review, and that Cecelia Hudelson-Putnam, Dean of Business, Behavioral & Social Sciences also would observe my class at a separate time.  (I hereafter refer to her as Cece, because that is the name by which she is known.  It pains me to have to make a complaint that involves her because everyone – including me – likes Cece very much.  I believe Cece is a good person who was under pressure from above. Throughout my evaluation-interview with her, she was exceedingly friendly, pleasant, and helpful -- and she gave me more than twice the allotted time.  I could not have asked for a nicer Dean, and I thank her for her kindness.)

               Cece observed my Ethics class on October 8, 2013.  I was discussing John Rawls’ so-called theory of justice.  The class had been assigned a selection of Rawls to read and to summarize, and I passed out a recent handout I had written on Rawls.   I was pleased at how well the class had gone and pleased with student participation.  When the class finished, Cece came up to me and expressed how much she had enjoyed the class -- and she said that it was a topic that interested her.

               Six days after Cece’s observation, October 14^th (the day I sent my “Dear Colleagues” letter), things began to go south.  When I got home from teaching late that afternoon, there were about three positive responses to my letter.  A couple praised me for my courage in daring to disagree with the administration, saying that many faculty members feared to disagree with this administration because of its reputation for retaliation.  However, there was a voice message on my home phone from the BBSS secretary to immediately call to schedule a meeting with Cece, my dean.  Additionally, there was an email from Cece to schedule a meeting with her soon, and the email was attached to my 9-page “Dear Colleagues” letter.  The obvious inference was that she wanted to talk to me about my email critical of the administration.  When I returned the call the next morning to make an appointment, however, the secretary told me to forget it.  She said that Cece had mistakenly believed that Stan Spector had finished his peer observation, so I could wait until he was done.  I think it is not plausible that Cece would have made that mistake. Spector was not due to observe my class until Oct 24 – ten days later.  And, that “mistake” does not explain why the appointment request was attached to my “Dear Colleagues” letter.  The obvious explanation is that I was in trouble with someone upstairs, but that they had decided to handle it more indirectly.

               About 8 am on the morning of October 24, the day of my scheduled peer observation, I checked my campus email before heading to work (I seldom have time to check it that early). What I found was an email from Stan Spector that morning, saying that he could not make it to the peer observation that morning because he was sick, but that Bill Anelli would take his place.  I had agreed to having Stan do the observation, but I was never asked and did not agree to having Anelli take his place.  This is a violation of the YFA contract. (The notice that Cece sent me on Sept 6 that I was to be evaluated states in the second paragraph that “Based on the YFA /YCCD contract, … Peer review means the involvement of at least one full-time faculty member who is mutually agreed upon by the evaluatee and the administrator. … Stan Spector has agreed to serve as your peer evaluator. … Should you … wish to submit an alternate choice, please inform me of you desire by September 16, 2013.”  Of course I could not object to Anelli being the peer evaluator by Sept 16, because he was given that role on Oct 24, five weeks later.)  Though I did not agree to the replacement, I raised no objection because I had no reason to believe that Anelli would misbehave in the unprofessional and hateful manner that he did.

               After Anelli had finished his observation of my class, Cece scheduled a time for me to meet with her to discuss my evaluation.  With many apologies, she twice had to postpone my scheduled appointment.  Finally we met on Nov 26, two days before Thanksgiving, a bit more than a month later than Anelli’s observation.  When we met, Cece had me read Anelli’s written evaluation (see Exhibit F below).  I was so taken aback that all I could say at first was, “Well, that was hostile!”

Anelli’s unprofessional and hostile tone in his formal evaluation of my teaching clearly violates the YFA contract, Appendix C-1, that outlines some of the qualities that YCCD expects in the faculty it hires: “Criteria for Faculty Evaluation” indicate common areas of performance in faculty to be evaluated under heading 3: "Respect for colleagues and the teaching profession by (a). acknowledging and defending the free inquiry of their associates in the exchange of criticism and ideas; … and (f.) working in a spirit of cooperation to develop and maintain a collegial atmosphere among faculty and staff." By no stretch can Anelli be construed as defending my free inquiry in the exchange of ideas, or of working with me in a spirit of cooperation or of trying to develop and maintain a collegial atmosphere.

For example, Anelli calls me "tendentious" FOUR times. He attacks my professional integrity and competence by accusing me of "grossly" misrepresenting both Peter Singer and John Rawls, and more than once accuses me of lacking "charity" and "fidelity" in explaining those two philosophers. He even accuses me of using “numerous fallacies such as ad hominem and straw man. This is flat-out libelous.

If I had been evaluating Anelli, and had thought that he had grossly and uncharitably misrepresented a philosopher, I certainly would not have attacked him in the way he did me. I would have taken him aside and explained how I thought he had misinterpreted the philosopher in question, and would discuss the question with him in private. Or, if I did see fit to say in an evaluation that I thought that he had misrepresented or been uncharitable to a philosopher such as Mill, I would say it much more gently and tentatively -- i.e., "I think Mill would be able to handle a couple of the objections that Anelli made against him" -- as opposed to the damning language he uses: "Professor Holly’s treatment of Peter Singer in the class were gross distortions of Peter Singer’s actual arguments and positions, and numerous fallacies such as ad hominem and strawman fallacies by the instructor."

Gross distortions and numerous fallacies? These are exceedingly serious charges against me. But, when I emailed Anelli to ask exactly how I had misrepresented Singer and Rawls, and what fallacies I had used against them, he replied that he was too busy to write a response. In his evaluation he even falsely accuses me of ignoring the fact that Singer had answered my objections in another part of his essay. For a year and a half he has refused to provide particulars to explain these empty charges against me. Again, if he has the time to accuse me of misrepresenting a philosopher, he should have the time to back it up and explain exactly HOW I have misrepresented those persons. So far from being collegial, it is nothing more than mud-slinging-- hurling vague and unsubstantiated charges. It is a common tactic of the unscrupulous: Make accusations so vague that they cannot be answered. It is like being accused of theft by a person who refuses to answer what it is that he is accusing you of stealing.

And, what evidence do I have that Anelli’s hostile and unprofessional behavior was part of a planned retaliation? The answer is that Cece Hudelson-Putnam is a decent person who intimately knows the YFA contract, and she would not allow Anelli to engage in such hostile and unprofessional behavior unless she had been under orders from her superiors. (Further evidence that higher administrators were directly involved in retaliation will be given in the discussion of Leslie Beggs’ experience.) Nor can Anelli’s hostility be blamed on his having had a bad day at home, or some such thing. He apparently took some 5 weeks to polish his nastiness, and I would like those investigating these charges to ask him who was helping him to write his “evaluation.” For example, were MJC lawyers and higher administrators helping Anelli craft his piece?

Moreover, the circumstances in which Anelli came to do my peer review are very suspicious. As noted, I had been told and agreed to having Stan Spector do the peer review of my teaching. However, at about 8 am Stan sent me an email saying he was sick and Anelli would take his place. This is a violation of YFA contract which says we the evaluator and evaluate should mutually agree to the person doing peer review. But, it seems to me very suspicious that this switch was done with such haste. Why not just wait a couple days for Stan to get better? Moreover, nobody watches emails more constantly than Anelli does, and he must have known of my Dear Colleagues letter. Was he asked if he would be willing to give me a hostile evaluation, and did Stan bow out because he wanted no part of dirty politics?

Anelli’s “evaluation” was not simply rude and insulting, not simply a failure of collegiality. It was crafted to strip me of my Academic Freedom and chill my speech. Anelli writes, "Professor Holly makes many of his own writings on these philosophers available to students – either as study guides or as long essays of his own. I would suggest that he rely on peer-reviewed scholarly summaries of these works (as are often found in various anthologies). Scholarship requires that we do our best to present students with peer-reviewed summaries of works from the academy, from relevant peer-reviewed journals, from university presses. For example if Professor Holly publishes in a relevant peer-review journal his understanding or critiques on various issues, then this would be an excellent sort of material to share with students." Anelli's suggestion is clear: Instead of making my own writings available to students, he says that scholarship requires that we present students with peer-reviewed articles -- I should share my work only if it has been published in a peer-reviewed journal!

Later on in his "evaluation," Anelli repeats this advice almost word-for-word: "My suggestion here is that Professor Holly would do well to include peer-reviewed, scholarship-based pro/con essays on these issues … instead of his own unpublished material. … My understanding of academic freedom is that while professors are free to explore different issues and to weigh in with their own evaluations of said material, this should occur within the context of academic quality – ie, fidelity, charity, and in relation to peer-review scholarship in one’s own field. We should primarily, be requiring of our students that they read published material based on principles of scholarship." (Underlines mine in this and above paragraph.)

In her evaluation, (see Exhibit F below) Cece mandates what Anelli suggests: On page 2 of her evaluation, she states that the Philosophy department would like see Holly "adapt his courses to the norms established within the department to standardize class expectations and student learning outcomes." The first requirement for conformity (or standardization) is given in condition 1:" Assign primary texts in philosophy. Secondary texts should be published/peer-reviewed texts based on scholarship in the field." Period.

The vast majority of assigned readings in my Ethics classes already are "primary texts" or journal articles from the textbook, Ethics (ed. By Cahn & Markie, Oxford U. Press, 937 pages); most of my own writings either summarize or evaluate assigned writings from that textbook. The thrust of Cece’s condition 1 is not simply to guarantee that students will be treated to classical and current philosophical writings -- that already is done. Its purpose is to restrict me from making my own summaries, analyses, and essays available to my students, unless those writings have been published in peer-reviewed journals.

This restriction on my teaching was presented as a condition of my continued employment, as I was supposed to be evaluated the following semester to ensure that I have met the "conditions for improvement" that she identified. So, this is a mandate, not a mere suggestion. And, as noted above, this restriction on my teaching does violate YCCD Policy 4030 on Academic Freedom, violates the YFA agreement regarding Academic Freedom, and clearly violates YFA Contract 34.4.1 on Intellectual Property (which states that YCCD encourages the creation of employee-developed works and course materials (see Exhibit G below).

It cannot be denied that this condition meant exactly what it said – that I was forbidden to assign or share any of my writings that had not been published in a peer-reviewed journal. When Cece was discussing that condition with me in her office, she confessed her concern that the condition might violate my Academic Freedom. Well, she ought to know, given that she is one of the faculty members who is thanked for her work on the 2012-2014 YCCD/YFA contract. I think Cece was trying to give me a heads-up on how to appeal this illegal restriction. Thank you, Cece.

Cece and I also discussed Anelli’s peer-review fetish, his seemingly servile submission to peer-reviewed articles -- as though they represented the authoritative dictates of what he calls the “Academy.” According to him, the Academy consists of experts with advanced degrees and with publications in peer-reviewed journals. By this definition, Anelli is not himself a member of that supposed intellectual elite, the Academy, because he has only a Masters degree in philosophy, and no published peer-reviewed articles. I, on the other hand, do have a Ph.D. in Philosophy, and publications in a couple prestigious peer-reviewed Journals. If members of the Academy are such authority figures, this raises the question, by what right does Anelli, who is not a member of the Academy, not even a Ph.D., question the validity of the writings I share with my students? If he wants to disagree with me, perhaps he needs to earn a Ph.D. and publish his criticisms of my essays in a peer-reviewed article, before we can know whether his criticisms have any validity. But, of course, Anelli’s deference to peer-reviewed articles is incomprehensibly silly. If I read a philosophical essay, I pay no attention to what degrees the author holds, or to whether or not it was published in a peer-reviewed journal. I am a trained philosopher, and I am competent to simply examine the arguments on my own. Appeal to “authority” has no place in philosophical analysis.

I should add that on Jan 21 and nearby dates, I emailed Stan Spector and Bill Anelli, asking if they had ever heard of forbidding instructors to share their unpublished writing with their students, and whether or not they believed that said restriction applied only to me or to Stan and Bill or other adjuncts as well. Stan deferred this question about what he personally knew to the Dean, saying it sounded like a College Policy question. Bill Anelli kept saying that he was too busy to respond in writing, but that we should meet to discuss my question. All my email required was a yes (or no) answer whether the stated restriction was novel to them, and a yes (or no) answer whether or not they believed that they (or any of the other) adjuncts were under that restriction. If indeed that restriction had NOT been placed on me, it would have been easy enough for Anelli to say at the time that no such restriction had been placed on me. But, he said no such thing, indicating that he of course knew the nature of the restriction.

Moreover, Anelli clearly thinks he himself is above such restrictions because, on his website for his students, he makes available philosophy lectures by other professors that are not published as peer-reviewed articles, and he shares with his students a paper of his (“The Peer Review Certification Label”) that has not been published in a peer-reviewed journal, though he has attached a homemade “Peer Review Certified” label with a NAS logo in its center! And, in one of his courses, he sometimes assigns “A Documentary Comic Book” (Postmodernism for Beginners) by Jim Powell. So much for the best that scholarship has to offer.

Curious as to whether or not this kind of restriction had ever been placed on anyone else, I emailed my question to the AAUP. Jordan E. Kurland, Associate General Secretary of the American Association of University Professors was so kind as to answer my question (see end of Exhibit G below). His answer (underlines mine) was:

“ Dear Dr. Holly, … You ask for our reaction to what you report, as a condition for continuance as an adjunct instructor on the college faculty after eighteen years of service, that you refrain from supplementing the primary assigned texts in your philosophy courses with your own writings that have not been published in peer-reviewed journals. The notion that the instructor can comment orally on the subject matter in conducting the class but not in writing is, candidly, novel and strange in our experience. As you say, it plainly restricts the instructor’s academic freedom.

“You go on at length to explain why this is so, and your argument is commendable. All college faculty members should have academic freedom that warrants protection, be they tenured professors or adjunct instructors. … Jordan E. Kurland, Associate General Secretary, American Association of University Professors

               Cece’s written evaluation (see Exhibit F below) begins well.  She says, “Bill is a detailed presenter and has a strong presence in the classroom.  His voice is good and he directs the course well as he presents lecture materials.”  I take that as praise, and thank her for that.  The latter half of her paragraph, however, says that only about a quarter of the class participated in class discussion, and that I need to allow students to ask more questions and engage in dialogue, noting that 4 students were not called upon, despite having their hands raised multiple times.  I think this only shows that students were so engaged that I could not call on all who raised their hand.  You know that you have a teaching problem when NO hands are raised.  (In the student evaluation, 84% of my students either agreed or strongly agreed that I encourage in-class participation; and 87% agreed or strongly agreed that the instructor is respectful of differing viewpoints.)  And, is one-fourth participation a low number?  I have materials to cover, and allow as much discussion as I can.

                Next, Cece switches to saying that Anelli found quite a different classroom environment, that my voice was quiet and difficult to understand, and that I did not use the whiteboard, etc.  What could account for the fact that Cece saw the opposite in her observation?  What she saw was that, “Bill is a detailed presenter and has a strong presence in the classroom.  His voice is good and he directs the course well as he presents lecture materials.”  Citing Anelli, she says “Mr. Holly did allow questions from students, yet failed to follow up on their questions with any substantial dialectical exploration of the student’s reasoning.”  In fact, in his write-up, Anelli said my lecture was not clearly organized, that there was no careful working through of Singer’s actual arguments, that the lecture and conversation “drifted,” and there were no serious challenges to students’ reading of Singer.  While saying that about a third of the students participated in discussion, there was “very little careful querying of the students to see that they accurately understood the reading.”  He wants me to focus more on accurately stating and outlining the actual arguments, as opposed to engaging in philosophical analysis.

               Anelli also seems critical that there were no dyads or small group breakout discussions.  It should be noted that he was only in my class that day for 50 minutes, about 20 of which were spent administering the student survey.  So, spending only about a third of the nearly hour and a half class observing my teaching, he complains that I don’t spend enough time outlining and doing follow-up on Singer’s very simple argument and he wants me to divide students into dyads, leaving me virtually no time for instruction.

               In her discussion of the student surveys done for my class, Cece nicely mentions four favorable student remarks.  But almost ALL of the reported student remarks remarks are very favorable.  Of the written comments, 21 of the first 22 are favorable, and 10 of the remaining 23 are favorable, which makes 75% of the written comments favorable.  Many of them are VERY favorable, saying such things as   "Professor is great, Thank you professor Holly, This is my favorite class and I love it -- I love the way he teaches, His teaching method is great, He's my favorite professor this year, He's very good at showing all arguments for and against a theory, He gives us great examples, Keeps my attention -- I enjoy coming to the lecture, Holly has a lot of knowledge and is a great person at heart, He really brings the material across in an easy to understand fashion and makes the class fun and engaging, Holly has done a great job interpreting the readings, W.J. Holly has performed an excellent job at teaching his students how to analyze, and more importantly, critique ethical theories even when they contradict the learner's personal morals, He is a great philosopher -- He knows his stuff, Creates an environment that encourages students to speak, The instructor encourages debates so that we are able to see different student views,  Yes, the classes and subjects are clear and easy to understand,  the instructor is funny and has a great sense of humor when it comes to philosophy --I think he's a great teacher and covers the subject matter very thoroughly."    I do not see how any impartial person can read these student comments and think I am anything but an excellent teacher.  In any event, the student remarks and the student survey do not back up Anelli’s almost entirely negative review of my teaching.

               In her 4^th paragraph, Cece uses a little math trick to make my survey scores appear less favorable than they are.  In the survey, students choose one of four answers to each of the 18 questions.  They can choose “Strongly Agree”, “Agree”, “Disagree”, or “Strongly Disagree”.  Note that Agree is always favorable, and Disgree is always unfavorable.  What Cece did was to first give some “Strongly Agree” scores, followed by what she calls “disagreed” scores.  In fact she was adding the disagree and strongly disagree scores together and calling them disagree scores, while she was not adding the Strongly agree and Agree scores to get an agree score.  This naturally weights the “disagree” scores more than it does the “agree” scores.  When I pointed out her mathematical sleight-of-hand, she became so agitated that she reached over and brushed her hand over that paragraph, as though trying to erase that little piece of dishonesty.  She knew it was a distortion unfavorable to me.  But, let us skip directly to the survey scores, where I do add the Strongly agree and Agree scores just to show how much the favorable scores outweigh the unfavorable scores:

Student Evaluations for William Holly, Philo 111, Fall 2013

Course Evaluation Results (Student responses for MFA-MPHILO-111-4538, William Holly) "Class Climate Evaluation" (Note: I have had to transcribe the results because they were not available to me in electronic form. Zerox copies are available upon request.

In the first section, students indicate whether they (1)"strongly agree," (2)"agree," (3)"disagree," or (4)"strongly disagree," with the 18 statements below. A percent of responses in each category 1 to 4 is given to the right of each statement. For example, in question 1 below, the "97" indicates that 97% either strongly agree or agree with the statement. 67% strongly agreed with the statement, 30% agreed, 4% disagreed, and 0% strongly disagreed: At far right, the number in parentheses (1.4) is the average response from 1 to 4 (3 being the median score).

1. The instructor's syllabus clearly explains course objectives and SA+A SA A D SD, av grading criteria. 97 67% 30% 4% 0%, (1.4)

2. The instructor's presentations are well prepared and organized. 84 38% 46% 15% 0%, (1.8)

3. The instructor clearly communicates due dates and directions for assignments and tests. 100 60% 40% 0% 0%, (1.4)

4. The instructor communicates a good command of the subject matter.100 48% 52% 0% 0%, (1.5)

5. The instructor is enthusiastic about the subject. 91 78% 13% 9% 0%, (1.3)

6. The instructor encourages in-class participation. 84 63% 21% 13% 4%, (1.6)

7. The instructor answers questions effectively. 80 52% 28% 16% 4%, (1.7)

8. The instructor creates a positive learning environment. 85 52% 33% 10% 5%, (1.7)

9. The instructor is respectful of differing viewpoints. 87 58% 29% 8% 4%, (1.6)

10. The instructor encourages creative and/or critical thinking. 91 74% 17% 9% 0%, (1.3)

11. The instructor's presentations address different learning styles. 60 24% 36% 24% 16%, (2.3)

12. The instructor utilizes the required course materials and/or texts effectively. 92 54% 38% 8% 0%, (1.5)

13. The instructor returns exams and assignments in a timely manner. 100 84% 16% 0% 0%, (1.2)

14. The instructor provides useful feedback on exams and assignments. 93 62% 31% 8% 0% ,(1.5)

15. The instructor's examinations cover course objectives and/or skills emphasized in the class 95 59% 36% 5% 0%, (1.5)

16. The instructor usually starts and ends class on time. 100 91% 9% 0% 0%, (1.1)

17. The instructor is available during office hours. 80 50% 30% 20% 0%,(1.7)

18. I would take another class with this instructor. 78 61% 17% 13% 9%, (1.7)

The leftmost column on the summary of student responses on the prior page tells what percent of the students "agreed" or "strongly agreed" with each sentence. For example, 100% either agreed or strongly agreed that I usually start and end class on time. Note that 16 of the 18 responses (89%) range between 80% and 100% on agree or strongly agree. I submit that this is an excellent student evaluation. Even my lowest score has 60% agreeing or strongly agreeing that my presentations do address different learning styles. My next lowest is, 78% agree or strongly agree that they would take another class from me. We do not know why 21% would not take another class from me -- perhaps some already have taken other classes from me and want to focus on their major now. Whatever the reason might be, 78% is not a shabby score. So far, then, the reasons for giving me a less-than-satisfactory evaluation are remarkably thin.

In a rather lengthy formal response to contest my hostile evaluation, I explained these and other points to Cece. All I got in response from her was an email saying, “Thanks Bill. I will print it out and put it in your personnel file.” I checked my personnel file about a month ago. The most recent materials were on a computer, and Cece and Anelli’s evaluations were there, along with more than a couple hundred pages of my tests, handouts, etc. But, there was no copy of my response to Cece about my last evaluation! I have reproduced my response at the end of Exhibit F below.

Let me note here that in all my 18 years of teaching at MJC, this is the first time that I have received less than a Satisfactory teaching evaluation. In all my regular evaluations in the past, I got an ordinary “Satisfactory,” with things to work on until my next three-year evaluation -- such faults as talking in a monotone or having poor eye contact. But, after publically criticizing the Administration, I got a “Satisfactory, with recommendations for improvement.” That means that I was supposed to go through the whole ordeal of being evaluated again the very next semester to see whether or not I had made the suggested improvements, such as not using my unpublished writings, learning to use power-point, etc.

The next semester (Spring, 2014), I did get an email from BBSS, saying that I needed to turn in my evaluation forms for that semester (which would include a self-evaluation, copies of all tests, all handouts, all syllibi, etc). When I responded that I had not yet received my evaluation packet, the secretary asked Cece, who said that my name was mistakenly put on the list, and that I was not going to be evaluated that semester. I was not told why I was not being evaluated as specified in my last evaluation. Nor was I notified that any of the punitive restrictions on my teaching had been removed. So, I have been in limbo, not knowing when the administration might move again to retaliate, and frankly I was afraid to ask.

I do, however, think I know why they did not go forward that semester to ensure that I was complying with their retaliatory suggestions for improvement. While writing my formal response to Cece, objecting to the unfairness of my evaluation, I had been writing a letter to Peter Bonilla, a lawyer from FIRE on the same file. When I emailed Cece my Reply, I accidentally sent her a copy of my letter to the lawyer from FIRE. I think that when they saw that I was consulting with a lawyer from FIRE, they decided that they had better back off. But, they did not tell me that.

IV. Betrayal By the Union (YFA)

Immediately after my meeting with Cece in which she transmitted the results of my evaluation, I felt I needed help from my union, the YFA (Yosemite Faculty Union). So, I emailed Debra Bolter, YFA President, asking for help (see Exhibit H below, for a copy of my email to Bolter, her reply, and a later email to (and from) my Union Representative). In my letter to Bolter, I complained that, despite the fact that the student responses were overwhelmingly glowing, Bill Anelli wrote an "evaluation" that was blatantly hostile. I noted that I only got a “Satisfactory, with recommendations for improvement” that required me to go through the whole process again the following semester. I also told her, “ I have reason to believe that this is retaliation. So, I would appreciate some advice from YFA.” (Underlines mine). In addition to asking her help in my getting the evaluations in electronic form, I said, “Cece has been very friendly and seems to be a nice person. However, at this point I am a bit leary of meeting her without another person present.” So, here is the email I got from Bolter, underlines mine:

"Hi Bill,

I did receive both your email and phone message. I just checked with Cece, and she has made copies of the evaluation materials (including student evals) that you've requested. They are available for you to pick up in the BBSS office. They aren't in electronic format. And although Cece is in my division, be assured that the union business is separate, and there is not issue about my offering you advice.

As to the nature of the evaluation with an improvement plan, this is a nice approach to the current situation. She has the the right to discontinue an adjunct contract. However, this is not the approach that she is taking. She is offering you ways to improve. So it is certainly an option that you should consider taking.

All the best, Debi"

I believe that every adjunct instructor at MJC should read Bolter’s letter. It displays a shocking and callous disregard for the rights of all adjuncts. It is an egregious violation of her fiduciary responsibility to YFA members. (To violate “fiduciary duty” here means to violate fidelity, to breach faith with the members she was elected to serve.) Her first unforgiveable breach was to go behind my back and talk to the Dean (Cece), without first talking to me and asking what my grievance was. She just went straight over to the administration against whom I had made a complaint. She didn’t bother to ask me why I thought they were retaliating. She didn’t even care to know what conditions had been put on my teaching, or what made me say the evaluations were hostile.

Most chilling of all, Bolter was telling me that an adjunct basically has no grievance rights (no rights as a teacher) because Deans can discontinue an adjunct contract at will – for any reason whatsoever. So, if I file a grievance, the Administration can simply neglect to rehire me. I felt like dirt beneath Bolter’s shoe.

Let me share a paragraph from page 54 of the 2005 Faculty Handbook:

“The Yosemite Faculty Association is the contract/labor negotiations organization for

certificated staff at Modesto Junior College. In other words, this is your union. The

primary purpose of the Association is to be the exclusive representative for its members

and to represent them in their relations with their employer in all matters relating to

employment conditions and employer-employee relations such as wages and benefits,

hours, and grievances.”

Isn’t that a pretty sentiment? “This is your union.” The union’s primary purpose is to be the “exclusive representative for its members.. .to represent its members in their relations with their employer in all matters relating to employment conditions… and grievances.” But Bolter immediately went behind my back to break confidence and to represent the Administration’s position against the person she was supposed to represent. If a lawyer behaved in such a fashion, she would be disbarred.

After this, it seemed clear that I could get no help from my union, because even the Union President was in cahoots with the Administration. However, after I told a friend what had happened, he suggested that I talk to a Union Representative he trusted. He assured me that she was a good person, so he introduced me to her just before she was set to give a union speech to a group of adjuncts. I shall refer to this person as Rep. X, because she agreed to try to help as a kindness, and because I cannot believe that she actually wrote the response I ultimately got from her. I do believe that somebody else had a hand in writing that letter. But, if she wants to own it as her own, I will be happy to give her credit.

Rep X was so visibly shocked when I described how Bolter had betrayed my confidence by talking to the Administration without first talking to me, that a few minutes later X told the group of adjuncts that if they brought a grievance to her, they could be ASSURED that she would keep it confidential. X knew how bad it was to break confidence in such a manner. … The upshot of our meeting was that I would email her, giving her copies of the evaluations along with my explanation how I thought they were violating YCCD Policy, etc. So, about a month later, I got the following bizarre letter from ”Rep. X.” Her letter was so morally impaired in its reasoning that I think that someone else must have written the letter for her.

Hi Bill, So I have finally had a chance to sit down and read carefully all the material you sent me so I could get a clearer understanding of the situation. I made a general question to Debi and Sarah Curl (I left your name out of it) about academic freedom, and they did say that academic freedom does apply to us as well as the full timers.

After reading all of the evaluations, I really think that you may be slightly misconstruing the situation. In my own reading of Bill's evaluation, he said that he suggested that you not use your own writings because he didn't agree with what you wrote. Technically, he didn't mandate anything regarding that, and neither did Cece. I think your less than satisfactory evaluation may have resulted from more than just the readings, they also seemed to have a problem with your teaching style. I am not saying these things because I agree with them, I am just saying that this is the way I am reading the documents. You can file a grievance with the union over this, but I'm not sure you'll get very far with this, especially since you have been assigned more classes for the summer and the fall. In my opinion, you don't really have a leg to stand on legally.

There are some things worth remarking here. In her first paragraph, she tells us that Debi and Sarah Curl did say that academic freedom does apply to us adjuncts as well as to the full timers. Good. We all knew that. We just didn’t know whether or not Academic Freedom was a right that we could stand on without having our employment discontinued.

Next, Rep. X first tries to excuse Bill Anelli on the ground that “he suggested that you not use your own writings because he didn't agree with what you wrote.” Well, this is an interpretation of Academic Freedom that even the most intolerant Nazi could endorse! “Feel free to write anything you like, so long as your evaluators agree with what you write.” Is that our union’s idea of Academic Freedom? Feel free to agree with your superiors?

Her second attempt to excuse Anelli’s restriction on my writings is to say that he only suggested that I not use my own writings, but that technically he didn’t mandate anything regarding that, and neither did Cece. (I have clearly established in the prior section of this document that Cece did indeed mandate that I not use my unpublished writings in my classes. I carefully documented that fact for Rep X as well, so she seems simply to be mouthing one of their “talking points” here.)

The second excuse she mentions is one that Anelli has tried before – that he only suggested, and did not mandate this violation of my Academic freedom. But, do Rep X and Anelli think it is proper and permissible for a person to SUGGEST a violation of their colleagues’ rights, so long as they don’t Mandate those violations? In the training that Anelli received on how to conduct a peer review, was he told that he could SUGGEST violating faculty rights, YCCD Policy, Caifornia Ed Codes, or the YFA contract, so long as he did not MANDATE his suggested violations? Are we to take such people seriously?

Of course it is true that Anelli lacked the power to mandate the violation of YCCD Policy 4030 on his own, since the Dean’s participation is needed as well. However, to use a basketball metaphor, he did set the ball up for the one who put it in the basket, making him a party to the violation of Academic Freedom. Besides, Anelli signed off on the document that mandated the violation that he suggested, and this makes him a partner in the crime, not a mere accessory to it. The illegal restrictions on my Academic Freedom needed a faculty signature to become a mandate, and Anelli signed the document that made his suggestion a mandate. Squirm as he might, he cannot wriggle out of this. It should be noted as well that Susan Kincaid (to be discussed below) also signed that illegal restriction on my teaching. I do not know whether or not President Stearns signed my evaluation, but during the semester in which that illegal restriction was placed on my teaching, Stearns announced in her MJC Reflections that she had enjoyed reading so many thoughtful teaching evaluations. I wonder if she enjoyed reading mine.

Finally, Rep X remarks, “You can file a grievance with the union over this, but I'm not sure you'll get very far with this, especially since you have been assigned more classes for the summer and the fall. In my opinion, you don't really have a leg to stand on legally.” Of course I am grateful for the work I have been assigned. But, the reasoning here is odd. Does Rep X think it is OK to violate the Academic freedom of faculty, so long as they haven’t been fired yet? That seems a bit like saying that it is OK to beat your wife, so long as you haven’t divorced her yet. I told Rep X to be safe. I did not tell her to go over to the dark side.

One last note: When the lawsuit was nearing settlement, the administration once again tried to divert attention by playing victim and putting out an alert to watch for hate mail and death threats. One would expect that such an announcement would be sent out by Becky Crow, Director of Campus Safety. But the announcement was made by Debi Bolter. I thought she had been promoted to an administrative post.

V. The Retaliation Against Leslie Beggs

On Sept. 21, only four days after the Constitution Day incident, Leslie Beggs published (in the Modesto Bee) one of the first commentaries on that event. Beggs’ piece was somewhat critical of how MJC was handling the incident, and she quoted Trustee Anne DeMartini as finding the whole incident “extremely embarrassing.” Well, of course it was embarrassing – MJC was made the laughing-stock of the whole nation. We looked ridiculous, preventing a veteran from handing out copies of the Constitution on Constitution Day.

I believe that DeMartini was the only Trustee to voice any criticism of how MJC was handling the incident. All the other Trustees sat by meekly while the Chancellor hired expensive lawyers to fight Rob’s lawsuit and to drag us through the mud, instead of working with FIRE to modify our free speech policy so that it did not violate the First Amendment.

In Exhibit I below, you can read for yourself Leslie’s Op Ed piece. For the life of me, I cannot understand how any person could be offended by what she wrote. It certainly is not “scathing.” However, in her second paragraph, she does accurately explain the policy that was invoked to prevent Rob from passing out constitutions. Leslie describes the “Limited Public Forum Request Form” that had to be filled out 5 days in advance, and that did restrict “free” speech” to the small free speech area. So, that might have been perceived as threatening the administration’s attempt to pass the incident off as a “misunderstanding.” And, Leslie’s piece was published next to Jill Stearns’ statement on the same topic. For whatever reason, Beggs’ article incurred their displeasure. She discovered that about six weeks later, around November 5, 2013.

In the following, I detail the retaliation against Leslie by shortening and underlining some of her “Retaliation Notes” written between Nov 5th and Nov 8^th, 2013. (See Exhibit I below for her unabridged notes):

As noted above, Leslie had published a column in the Bee on Sept 21, next to a statement by President Sterns. Leslie’s husband, Dr. Jim Beggs, has taught at MJC as a full-time English professor since 1991, and Leslie taught part-time at MJC 2002-2003. She has an M.A. in English, and has also taught part-time at other colleges.

On Nov 5th, 2013, Leslie was asked if she would be willing to take over three English 49 classes for the rest of the semester because they had not been able to find a replacement for an ill instructor, RoseLee Hurst. Leslie accepted the position during a phone call with the administrative secretary for Literature & Language Arts, who told her how "thrilled" she and the dean were that she was helping them out … The secretary said she would send all of the materials for Hurst’s classes home with Leslie’s husband and that Leslie would start the next day at 8 a.m., November 6th, because the students had already missed at least two weeks of instruction. In the meantime, Leslie was told to contact HR to get the relevant paperwork underway. …

Leslie’s husband Jim went to the English division office late that afternoon, and was about to pick up the binder and flash drive for Leslie’s classes when the administrative technician received a call from the dean. The admin. technician told Jim, "She won't be able to teach here." She said she didn't know what the reasons were. The dean called back and told Leslie’s husband, "There's nothing I can do. It's the 'higher-ups.' They're my bosses." She said it had to do with "a certain editorial. I just have to be honest." And Jim said, "Susan Kincade? Jill Stearns?" And she said, "Yes. And Joan." (Susan Kincade is the VP of Student Instruction, Jill Stearns is President of MJC and Joan Smith is Chancellor for the Yosemite Community College District. The dean in question here is Jillian Daly, Dean of Literature and Language Arts, who also is Dean of the Library.)

Jim was flabbergasted, left the materials behind in the office, and called to tell Leslie what had happened. … Not a single person from MJC talked to Leslie personally to tell her she’d been unhired. The only person who was given that info was her husband. ... Since no one had officially unhired Leslie, she decided to go into work on the 6th as she’d agreed to do. When she showed up at the first class, another instructor was already there. She was nice, apologized for “the confusion,” and directed Leslie to the Lit & Lang office. …

… When the dean (Jillian Daly) arrived 10 minutes later, she warned Leslie, “The walls are thin here. Everybody can hear everything." The dean told Leslie how sorry she was, how "awful" the previous day had been, how she'd "broken down" after Leslie had been unhired, etc. She added, "You have a great reputation around here. And your husband is one of the most professional, most respected, professors." She said that she'd been in a terrible bind, that she had 20 sections she was trying to find teachers for in the spring and summer, and that she'd been scrambling to find someone to take over Hurst’s three English 49 classes, but couldn’t find any takers.

She explained that during a meeting the previous day, she'd told Susan Kincade how thrilled she was to have finally found someone to take over Rose's 49 classes. When she mentioned Leslie’s name, she said there was a long pause. Then Kincade said, "Leslie Beggs? She's the one who wrote that scathing editorial. You can't hire her. I won't allow it." The dean said that she couldn't budge Kincade; that she’d tried to, and that she would try again in a meeting later that day. She said she probably shouldn't have told Jim the truth, but she felt so badly about what had happened, and she'd known him so long, that she didn't try to hide it. She said the top administrators were going to “mentor” her. Leslie said something along the lines of, “Well, I hope they don’t ‘mentor’ the truth out of you.”

Hours after Leslie’s conversation with the dean, Leslie’s cell phone rang, and the caller ID showed an MJC prefix. Leslie answered, thinking it was her husband. It was Susan Kincade. She told Leslie that there’d been a “horrible miscommunication” and that the dean was new and didn't quite have things figured out, but that they would LOVE to have me teach one class for them. She made it clear that the failure for the “horrible miscommunication” was the dean’s fault. Leslie was stunned by Kincade’s throwing the dean under the bus. Leslie needed to think about the offer, so did not commit over the phone. Then she called her husband and asked him to tell the dean what Kincade had done to her. He called back a little later and told me that when he’d entered the dean’s office, before he’d had a chance to say a word, she’d said “I’ve been thrown under the bus.”

Jim said that the dean just wanted it all to “go away” and for Leslie to take the one class. Jim and Leslie both were convinced that the turnaround happened because the dean’s superiors learned that she had told the truth about why Leslie was unhired. So, they recast it as a ”miscommunication.”

As Leslie summarized her position at the time for FIRE, “My main goal . . . is for these three to not get away with this sort of thing. How many Rob Van Tuinens who didn’t have video were maligned and mistreated – and nobody knows about it?” Leslie goes on to say, “The whole experience still seems surreal. I didn't go looking for a job at MJC -- I was sought out and asked to help them out of a bind. … However, because of my “scathing” column, the teaching option was off the table.”

LesIie did accept the one class offered to her. She ends her notes with these words: “Considering that my students had missed at least two weeks of instruction, I was pleased that they passed the Common Final at a higher rate than average. (Instructors don’t grade their own students’ finals.) I also taught one section this past Spring, went through the entire teacher evaluation process, and received a good evaluation. However, judging by the momentary lifting of the curtain that occurred on the day I was fired, we strongly suspect that retaliation has only been deferred, not aborted. If Kincade had called me to say that she had reacted emotionally the day before, that she thought my criticism of Van Tuinen’s treatment was unfair – but that she would like to re-offer those classes, I would have accepted both the apology and the classes. Unfortunately, that’s not what happened. It seems absurd to me that in the midst of a lawsuit against MJC for violating a student's free speech rights, the behavior of MJC's leaders continued to drive home just how important academic freedom and free speech really are.”

So, to sum up the most important points in this sad and seamy affair: Leslie was offered a job, she accepted, and she began preparing to teach the following morning. But, when dean Daly told her immediate superior, Susan Kincade, V.P. of Instruction, that she had hired Leslie Beggs, Kincade said, "Leslie Beggs? She's the one who wrote that scathing editorial. You can't hire her. I won't allow it." So, Kincade denied Leslie a job at this public college because she did not like a column that Leslie had written. Even more shocking than this is that Jill Stearns and Joan Smith were present at the meeting where this was said. So, all three of them, the MJC President, the Chancellor, and the VP of Instruction, were party to this decision to retaliate against Leslie for publically expressing her honest opinion.

What is more, once these top administrators discovered that Daly had slipped and let the cat out of the bag, they manufactured a LIE. To cover up Daly’s slip in telling Professor Beggs that his wife had been unhired because of the “scathing” column she wrote, Kincade tells Leslie that there has been a “horrible miscommunication.” There was no miscommunication. Dean Daly simply communicated the truth about those people -- that they were retaliating for a newpaper column that they deemed “scathing.” To top it off, they tossed Jillian Daly under the bus. Those were her own words: “I have been thrown under the bus.” They blame her for miscommunication, when in fact she simply blurted out an inconvenient truth. But, they promised to mentor her later. Mentor her in what?

Recall that from the very beginning, this Administration seems to follow the same playbook: In her public statement on the Constitution incident, Stearns misleads the public about our free speech policy. She does this by passing the incident off as a “misunderstanding” caused by a confusing conversation (a lack of clear and accurate communication – a horrible “miscommunication”?) that will be corrected by better training of her employees. In short, she throws Serrano under the bus, just as Daly later is thrown under the bus.

What relevance does this have to the retaliation against me? These administrators retaliated against Leslie on Nov 5, and only three weeks later (Nov 26), they retaliated against me. Susan Kincade, whose penchant for retaliation was reported by dean Daly, Cece’s immediate supervisor, too, when I experienced retaliaton. Susan Kincade signed the evaluation that illegally forbade me to use my unpublished writings in class. Now, if all three of those administrators (Kincade, Stearns, and Smith) knew of Leslie’s column in the Bee and felt justified in retaliating against her for it, surely they all knew about my “Dear Colleagues” letter that had been emailed to everyone at MJC. And, just as surely, given their established retaliatory nature, there can be no doubt that all three of them were party to and involved in the retaliation against me as well.

In Exhibits B and C below, President Stearns and Chancellor Smith both affirm their commitment to free speech. In her last paragraph, Stearns says, “…We appreciate all points of view across the spectrum and support every individual's right to express their view.” And, Smith says, “MJC cherishes free speech and always will.”

I think we cannot believe that Smith and Stearns support or cherish free speech at all. Judging them by their resistance to liberalizing our free speech policies, and given their solid record of retaliation against faculty who honestly expressed disagreement with them, I think we can conclude that their words of support for free speech are entirely empty.

I have no time for an extended discussion of why freedom of speech is such a sacred commodity. But, I would like to share a paragraph from a letter I handed to the Board of Trustees, along with the YAL newspaper that detailed the destruction of 70% of the 75,000 books in our library before the remodeling. (Without even asking the Board of Trustees, this administration dumped about 52,000 of our library books into recycle bins. I believe that this too violated Ca Ed Code.) What I wrote in my letter to the Board was this:

“Freedom of speech, the right to express and exchange ideas and information, is essential to any educational endeavor, to the attainment and advancement of knowledge, and to the development of character and values. In fact, freedom of speech is foundational to our democratic way of life. Without this freedom, without a voice, citizens have no way to protect their lives, their liberties, and their fortunes, no way to make injustices known and to file grievance against tyranny and abuse.”

In Exhibit J below, you will find two excellent reference pieces for those interested in the defense of Intellectual Liberty. The first is by one of the noblest men ever to walk this earth, Col. Robert G. Ingersoll, and (second) the University of Chicago Report of the Committee on Freedom of Expression. I have underlined part of the latter, as I believe that it provides a proper antidote for the false priority of putting civility above freedom of expression: “Although the University greatly values civility, … concerns about civility and mutual respect can never be used as a justification for closing off discussions of ideas, however offensive or disagreeable those ideas may be to some members of our community.”

In closing, I would like to remind my dear colleagues, that this is not an opinion piece. It is a protected disclosure. It is a formal accusation and demand for an investigation into the violation of State and Federal laws, California Ed Codes, YCCD Policies, and the YCCD/YFA contract. It formally names and accuses members of this community of moral and criminal violation of these and other offenses. I am not claiming that the people named in this accusation are evil, that they did not sometimes have good intentions, or that they have not worked hard and performed valuable service. I am only saying that those who lie and who violate laws, contracts, and the sacred liberties of the members of our community are unfit to be in positions of power. They must leave. As Robert Ingersoll put it:

” Men who deny to others the right of speech are not fit to live with honest men.”

To be completely honest, I do not have much faith that I will be afforded protection against the retaliators. Retaliation, like love, always finds a way. But, if you ever feel the boot of oppression on your own neck, ask yourself what you yourself did to make our community safe from the kind of people who never should be allowed to have power over others. I leave you with another quote from Robt. Ingersoll: ”For my part, I would not wish to live in a world where I could not express my honest opinions”

A footnote seems to be in order here.

I have heard that our Board of Trustees is told that its job is to support its CEO – the Chancellor. This undemocratic nonsense is contrary to California Ed Code, and it is inconsistent with the very reason for having a Board of Trustees. If their only job were to be rubber stamps for the Chancellor, then there would be no point in electing or having Trustees.

Administrators are not rulers of their private fiefdom. Administrators are servants of the people, answerable to the people. They are mere employees, not dictators.

Trustees are not elected to serve the Chancellor. Trustees are elected to provide oversight on behalf of the voters, their constituency. They are elected to serve the taxpayers, not to serve administrators, mere employees.

In short, it is the duty of our Governing Board to stand up and exercise control over its employees when necessary.

This is not my opinion. It is Ed code:

Californian Ed. Code 70902:

70902.  (a) (1) Every community college district shall be under the

control of a board of trustees, which is referred to herein as the

"governing board." The governing board of each community college

district shall establish, maintain, operate, and govern one or more

community colleges in accordance with law …

   (b) In furtherance of subdivision (a), the governing board of each

community college district shall do all of the following: …

   (7) Establish procedures that are consistent with minimum

standards established by the board of governors to ensure faculty,

staff, and students the opportunity to express their opinions at the

campus level, to ensure that these opinions are given every

reasonable consideration, to ensure the right to participate

effectively in district and college governance, and to ensure the

right of academic senates to assume primary responsibility for making

recommendations in the areas of curriculum and academic standards.

******************************************************************

Exhibit A: "Dear Colleagues" email sent to Everyone at MJC, 11:04 pm, Oct. 14, 2013 by W.J. Holly: Note that there is an error in paragraph 9 below. There I mistakenly say that Jill Stearns' letter was published on Oct 10th, after the lawsuit was filed. I believe, however, that her letter was posted on the MJC.edu website by Sept 22, only a few days after the Sept 17th incident. Stearns' letter can be viewed below as Exhibit B: Stearns' Statement.

Dear Colleagues: The paper attached above (Destructing Causal Deconstruction) exposes some of the absurdities that are committed in the name of "Deconstruction." I think it is a good read -- clear, amusing, imaginative, and instructive. If you ever wondered what "deconstruction" is really about, you would be hard pressed to find a better introduction. One question that I cannot answer, however, is whether or not I would be arrested by a security officer if I insisted on wandering about the quad on our campus, handing out copies of this paper and discussing it with those who might be interested in the topic. This is not a silly question. For, as you will find if you read below, one of our students recently was denied the right to distribute copies of the constitution on this campus on Constitution day. He was blocked in the exercise of his freedom in this regard, both by campus security, and by an official from Student Services. As I say, my paper on Deconstruction is amusing. The following remarks on freedom of speech are not amusing. If I have said anything that offends anyone in what follows, I beg their forgiveness in advance.

Nearly a month ago (Sept. 17th) one of our MJC students, Robert Van Tuinen (also a veteran), was trying to pass out copies of our federal Constitution on Constitution Day. He was prevented in this exercise of free speech by an MJC security officer, and then by an official at the office of Student Services who told him he was allowed freedom of speech and the right to pass out literature only in certain tiny restricted areas on our campus, and then only after booking a reservation -- which would not be available until the following month!

I am puzzled why there has been no faculty outcry over this ugly incident. Why are we not standing up for our student who only wanted to exercise his constitutional right to free speech? Do we really want to be known nationwide as the college that wouldn't let a veteran pass out copies of our Constitution on Constitution Day?

     While this news has not even been mentioned on our faculty mail site, it has given our college a black eye all across the nation. It has been reported in the Modesto Bee, on Fox news, and all over the internet. For example, the website for the Foundation for Individual Rights in Education (thefire.org/case/930) has a video of the incident, and relevant links to many other sites. It also has a copy of the lawsuit that Van Tuinen has filed regarding this violation of his First Amendment Rights, and even has posted a copy of a public statement on the matter by our honorable and esteemed College President, Jill Stearns. None of this has shown up on our faculty website. Why not? It seems to me that protecting our students' rights to freedom of expression should be of paramount concern to all of us.

     A picture is worth a thousand words. If you think it a small matter that Van Tuinen was not allowed to exercise his rights on Constitution Day, then watch the video of how he was treated by campus security and Student Services. I contend that not even a morally defective person could watch that video without feeling deeply offended by how he was treated. But if any of the morally defective people out there can prove me wrong, let me know.

     The First Amendment in pertinent part says, " Congress shall make no law … abridging the freedom of speech, or of the press …" Some have taken this to be a right you have against the Federal Government, but not (say) against the State of California (as though the rights you thought you had simply in virtue of being a citizen of the United States could be nullified by the particular state in which you live). Happily, the point is largely moot because the constitution of California has its own guarantees of rights that largely parallel the U.S. Constitution Bill of Rights -- including separation of church and state, etc. Guarantees of freedom of expression even exist in parts of the California Code of Education, and even the University of California has a constitution that holds out these rights, and even individual campuses have their own codes regarding such things as Academic Freedom. At CSUS and at PLU, the rules that claim Academic Freedom for faculty make clear that such freedom should extend equally to students!

     If we need to be reminded of the importance of Freedom of Thought and Expression in a democracy, and in an institution of higher learning, we need only review J.S. Mill's arguments in On Liberty that have been used to explain how only in an atmosphere of free discussion and free exchange of ideas can we develop our powers of judgment and have access to information that would enable us to know the truth and to develop our human excellences. An institute of learning without freedom of thought and expression and full exchange of information is simply not an institution of learning.

     The lawsuit filed by Van Tuinen cites some court rulings that seem relevant to the issue at hand:
" In a long line of cases, the United States Supreme Court has made clear that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; The College’s reflexive bureaucratic restriction of free expression is sadly ironic, as “[t]he essentiality of freedom in the community of American universities is almost self-evident.” Sweezy v. New Hampshire, 354 U.S. 234, 250 … The Court has stressed that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Id. (quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960)). Accordingly, courts have zealously guarded the freedoms of speech, assembly, and petition in recognition that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,” id, and that “[t]he first danger to liberty lies in granting the State the power” to limit these freedoms “against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 835 (1995)." Surely these are sentiments that we can fully embrace!

     In a valiant effort to salvage this situation and to right the wrongs that have been done, our MJC President Jill Stearns has issued a statement on the matter. I do not know where it was published, as I got it off the thefire.org site. It seems to have been issued on 10/11, almost a month after the incident, and a couple days after the lawsuit was filed. In any event, President Stearns does say that a formal apology has been provided the student,that the misunderstanding is deeply regretted, and that MJC and YCCD wholly support student free speech as a "fundamental pillar of education." Her endorsement of freedom is flawless: "I wish to express my thanks to those individuals willing to stand up for our Constitution and expression of free speech. To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse. We appreciate all points of view across the spectrum and support every individual's right to express their view."

     It seems o me that we should give President Stearns our full support in rectifying this unfortunate situation -- a situation probably not of her own making, since she likely is not the person who made the offending rules, and God knows she has had a more than full plate of responsibilities during her tenure here. There are however a couple small points that are cause for small wonder: First, it is unclear what she means when she addresses "those who were offended by the appearance of censorship." Van Tuinen was not subjected to the mere "appearance of censorship." He was silenced and he was prevented from distributing his literature. That is outright censorship, pure and simple, whether it resulted from a misunderstanding or not.

Second, while President Stearns seems to suggest that the incident was due to a confusion (a regrettable misunderstanding), and that staff have been provided policy and training to ensure more accurate information in the future, the lawsuit clearly cites the rules that were enforced against Van Tuinen. I do not see that the rules were misinterpreted. Have they been eliminated? In her 3rd paragraph, President Stearns says," students may distribute printed material on campus in areas generally available to students and the community as long as they do not disrupt the orderly operation of the college. There are procedures to avoid duplicative use of areas. The district is evaluating its policies and procedures. The college and district administration support the peaceful distribution of printed materials on campus. There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area." This is confusing. Are we being told that students never were restricted to a small area to distribute their literature, and that they never did have to get permission in advance? A large part of Van Tuinen's lawsuit is to seek an injunction against enforcement of the offending rules. If the rules used to restrict Van Tuinen just never existed, most of the suit goes out the window! But, if this is the case, President Stearns should cite the rules and point out how their misapplication was just a misunderstanding. I do apologize if I am simply wrong on this point.

Third, we are told that a formal apology has been provided the student. It seems to me, however, that apologies in such cases are best made in public. I think Van Tuinen would want a published apology, a public admission that MJC had no right to deny him the exercise of his liberties that they did, and a promise that no other students would have their rights similarly violated. And, since the violation of the rights of one of our fellow citizens violates us all, I believe that we all are entitled to see a copy of that apology, to see the particulars of the concessions made, and to see in what manner those liberties now are affirmed that then were denied. Besides, the apology seems not to have had one of the effects I would have hoped for: The lawsuit apparently has not yet been dropped. That is evidence that it was not an adequate apology.

Another small point is that President Stearns complains about the lack of civility in some of the public response to the incident. She says, "it is disheartening that some of the public response has diverted so drastically from the principles of civility and in fact has become directed at individuals. Staff have been called morons, idiots, whores, and Nazis. Moreover, some communication was egregious to the point of death threats which clearly violates any precepts of free speech." Well, I generally am against name-calling. I personally would not call the MJC staff morons, idiots, or whores. But, I think we should put this whole civility thing in perspective. Getting hate mail just comes with the territory when one takes controversial stands in public. As bad as name-calling is, however, it really is not comparable to violating another person's civil liberties. The bill of rights does not give anyone the right not to be called an idiot or a whore. In fact, if congress cannot abridge my freedom of speech, perhaps the bill of rights gives me the right to call other people idiots or whores. Whether it does or not, calling people names is not as bad as is violating their constitutional rights. Moreover, I think one should not be terribly surprised if people are a tad uncivil when they think you assume you have the right to run roughshod over what they take to be their constitutional liberties. We shouldn't expect civility when we don't respect other people's civil liberties.

What about people calling us Nazis? Again, why be so hurt and surprised at being called Nazis when we are restricting people's liberties? This isn't what people expect from representatives of the law in this, these United States of America, in this land of the free and the brave. Instead of complaining that some (probably anonymous) people called our friends Nazis, perhaps instead we should commend Van Tuinen for his admirable restraint when he was blocked by a police officer, and told by a representative of this school that he had no right to distribute copies of the Constitution in a public place without first getting advance permission from a college administrator. Why should he be required to get advance permission from a bureaucrat to share his beliefs with others on the campus of an institution of higher learning? Who treats people like that? Nazis do. Communists do. The Taliban does. We don't expect Americans to act that way. That is why the word "Nazi" springs to some people's lips.

Of course MJC must put some restrictions on how people exercise these rights. People's right to free speech does not give them the right to disrupt educational activities on campus. So, some of the restrictions in place are good: People are not allowed to roam into classes, offices, or locker rooms to distribute their literature, they are not allowed to interfere with people's movements to and from classes, and they are not permitted to bring voice amplifiers on campus. Well and good. But, confining people to small areas, and making them get permission in advance to speak or to hand out literature, do not seem necessary for keeping the peace.

So, what about death threats? Of course death threats are unacceptable. To threaten another with death is against the law. Legally, it is assault, not an expression of free speech. But, again, I want anyone reading this to stop for a moment and try to comprehend the depth of the harm (the enormity of the crime) that we do to human beings when we use the power of the State to deprive them of (or to trample on or to violate) their civil liberties. Let it sink in how important these rights are. We don't like death threats? Of course not. But, the importance of these rights lies not just in the fact that people have been willing to die for them. These rights are killing rights. People have fought wars, they have killed people in large numbers in order to keep the rights that were denied to Van Tuinen.
Of course Van Tuinen is not making death threats. He lives in a country where he has a legal claim to the freedoms he was denied, and so he initiates a lawsuit to get what is his due as a citizen and as a human being. But, make no mistake about it. We honor those who have fallen in the defense of our way of life. But, we still have the Bill of Rights, not just because some soldiers died to keep us free. We have the Bill of Rights to protect us because our soldiers were competent killers of those who would oppress us. We spilled the blood of others to gain and to preserve those rights. So, these are not commodities to be treated lightly. Thomas Jefferson wrote that when a long train of abuses evinces a design to reduce us under absolute despotism, it is our right, it is our duty, to throw off such a government. When he wrote this, he was not advocating a tea party. He was advocating that we take up arms and if necessary kill those who would reduce us under absolute despotism. Such is the value that Americans place on their freedoms and their rights.

Happily, we are only facing a lawsuit, not a revolutionary army. So, how can we best get rid of this pesky lawsuit? Van Tuinen claims that he has been irreparably harmed, and he wants MJC policy changed, and he wants punitive damages -- he wants the people who trampled on his rights to pay. In one interview, he has said that he is not doing this for the money. I think what he wants is a civil rights victory. That should be easy to give him, especially if President Stearns is right this all has just been a misunderstanding. However, I suspect we will need to make substantial changes in the rules so that people can freely speak, discuss, and distribute literature anywhere on campus, so long as they do not disrupt the educational processes (subject of course to some of the restrictions I mentioned before that already are in place, like staying out of offices, classrooms, and lockers when exercising these freedoms). If (as I suspect) large changes in the rules are needed, I think the best that our President can do is to say something like this: "I am truly sorry that this slipped under my radar. I just was not paying attention, and you are absolutely right that these policies are not worthy of an institution for higher learning. So, with your advice, we are going to MAXIMIZE the opportunities for free discussion and free exchange of ideas on this campus." And, to make our wronged student confident that these rules will stand, we should promise to preface these rules governing speech on campus with pertinent quotations from the Bill of Rights, and even throw in another couple quotes that exalt these principles of freedom. How about this one from Thomas Jefferson: 1) "I have sworn upon the alter of God, eternal hostility against all forms of tyranny over the minds of men."

Of course we likely will have to pay Van Tuinen's lawyers' fees, but the sooner this is settled, the less those fees will be. But, what about punitive damages? If he doesn't really care about money, if he just wants public acknowledgement that he was wronged, perhaps we should offer this: Buy him a couple thousand copies of the Constitution or of the Bill of Rights, and offer to make the individuals he has sued do community service that is relevant. Make them each do twenty hours of community service that consist of passing out copies of the Constitution and explaining to people the importance of everyone's right to free speech. That ought to make him whole. And, to show my sincerity, I hereby offer to do 20 hours of such community service myself. Perhaps I too bear part of the responsibility here, because this one flew under my radar too. I did not check to see if my students' rights to free speech were properly protected. Sometimes the implications of rules just do not strike us until we see them enforced.

One more thing: A couple weeks ago we were treated to a public exchange of emails between James Todd (the President of our Academic Senate) and another of our esteemed colleagues (Jim Howen) who was concerned that CEP might be using public monies to pay Angela Davis (an avowed Communist) to promulgate her political views (Davis once was the leader of the Communist Party USA, and was awarded the Lenin peace prize by Leonid Brezhnev himself.). James, who seems to admire Davis, accused Jim of intolerance and "reductionist politics." It seems to me that James was off topic, given that the question was the correctness and legality of using public monies to promulgate a political agenda, Communistic or not. As for intolerance, I think that a brief survey of the most famous communists of the 20th century (Lenin, Stalin, Mao, Pol Pot) leaves no doubt that they did not tolerate dissent, and that they crushed human liberties in general, free speech in particular. They all were mass murderers and brutal despots. So, on the whole, I do not see what there is to like about Communism. To give you a flavor of what it would be like to live under a Chairman Mao, for example, here are his articles of Party discipline: " 1) The individual is subordinate to the organization. 2) The minority is subordinate to the majority. 3) The lower level is subordinate to the higher level. 4) The entire membership is subordinate to the central Committee. Whoever violates these articles of discipline disrupts Party discipline." Know your place. Look up and shut up.

I do not know where Angela Davis would stand on these questions. However, I would have absolutely no problem with her coming to MJC and distributing the Communist Manifesto or a manifesto of her own device in the quad, so long as it is on her own dime. If she is advocating views that I think are dangerous, what better way to find out than to be handed a piece of her literature? And, if we have a free and open campus, I can write up my own refutation of her views to pass out the following day, and it is nobody's business if we are doing it on our own dime. And, who knows? Perhaps I will learn something from her. In any event, I see no reason why she should have to get permission from student affairs, show her ID, make an appointment, show that she is a student or that she represents any student club, or any other such nonsense, in order to distribute her literature. This is a free country. Our campus belongs to the public, and should be treated as a public place. All people should be free to come and to express their thoughts. For example if some person hears that I or James Todd said something in class that he thinks is offensive or wrong, I think he should be allowed to write up his objections and distribute them to students in the quad. So, I am saying, let us open our arms entirely wide to freedom. Let the entire campus (except for locker rooms, classrooms, and offices) be a free speech zone. We don't need a pinched and rule-bound notion of free speech here. Let us set an example of commitment to free and open debate to the rest of the country.

Now, if you do not like my suggestion that we should have a policy of completely free, unfettered and unqualified freedom of thought and expression on this campus, just ask yourself this one question: Suppose that Thomas Paine, the great phamphleteer ("These are the times that try men's souls…") were to come to MJC. Would you make him show his ID or make an advance appointment? Would you sic campus security and Student Services on him before allowing him to distribute his literature? Hell, what would you do if Jesus came? Would you have Student services tell Him he needs an appointment in advance, that the free speech zone is booked up until next month, and that He needs to confine his speech to the designated free speech zone areas? I say, Let Freedom Reign! W.J. Holly

Exhibit B, MJC President Jill Stearns' Sept 22 statement:

President Stearns' statement about the Constitution and expression of free speech

On September 18, 2013, Modesto Junior College received a letter regarding a posted copy of an edited video taken on the MJC campus. Modesto Junior College and the Yosemite Community College District immediately launched a comprehensive review of the incident.

Upon review, it was determined conversation between the student and staff was confusing regarding distribution of materials on campus. A formal apology has been provided the student. We deeply regret this misunderstanding. College staff have been provided the policy and procedure for review and follow-up training is planned to further ensure that clear and accurate information is provided in the future.

As described in the District's official Board Policy and Administrative Procedure, students may distribute printed material on campus in areas generally available to students and the community as long as they do not disrupt the orderly operation of the college. There are procedures to avoid duplicative use of areas. The district is evaluating its policies and procedures. The college and district administration support the peaceful distribution of printed materials on campus. There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.

Modesto Junior College and the Yosemite Community College District wholly support student free speech and support Constitution Day with activities each year. It is thus troubling to see this type of incident unfold the way it has, and for the college to be subjected to allegations of censorship. The college and district support civil discourse as a fundamental pillar of education. Although we appreciate free speech, it is disheartening that some of the public response has diverted so drastically from the principles of civility and in fact has become directed at individuals. Staff have been called morons, idiots, whores, and Nazis. Moreover, some communication was egregious to the point of death threats which clearly violates any precepts of free speech.

MJC remains committed to excellence in educational programs, service to students, and institutional effectiveness. The college is taking even this most unfortunate incident and using it as an opportunity to review policy, procedure, and interaction to improve service to students.

I wish to express my thanks to those individuals willing to stand up for our Constitution and expression of free speech. To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse. We appreciate all points of view across the spectrum and support every individual's right to express their view.

Jill Stearns
President
Modesto Junior College

Exhibit C: Chancellor Joan Smith's Op/Ed: YCCD Modesto Bee, March 4, 2014;

Joan E. Smith: Time to separate truth from hearsay in Modesto Junior College free-speech lawsuit

By Dr. Joan E. Smith
Tues. March 4, 2014

"Sue first, ask questions later.” This appears to be the new entrepreneurial business model demonstrated by the Foundation for Individual Rights in Education. For the past six months, the Yosemite Community College District has endured a series of inaccurate reporting, false accusations and organizational character attacks at the hands of this approach to resolve issues.

Unfortunately, the way our legal system works, sometimes institutions of higher education are forced to settle, even when they are being misrepresented, to avoid spending hundreds of thousands of dollars in legal fees. Either way, it’s a losing proposition for the college.

There were issues that remained outstanding until late last week. The issues were with respect to correcting multiple erroneous statements on the FIRE website regarding the incident. Now that they have been mostly corrected and FIRE committed to fix the remainder of the inaccuracies, the settlement will proceed.

Recently, FIRE published and distributed another error-filled press release. Let’s start with the facts.

FIRE reported that “MJC prevented Mr. Van Tuinen from handing out the Constitution.”

Modesto Junior College did not prevent Robert Van Tuinen from handing out copies of the U.S. Constitution. There might be some disagreement on this point, but that did not occur. The reports failed to mention that at the same time Van Tuinen was videotaping his discussion with clerical and district staff on MJC’s East Campus, the Associated Students of MJC were handing out U.S. Constitutions on MJC’s West Campus in celebration of Constitution Day. This event was well-advertised and extensively publicized on both campuses.

FIRE reported that the district’s policies were “unconstitutional.”

There was never any finding by the (U.S. District Court in Fresno) that the district’s policies violated constitutional free speech principles. The intent of the district’s previous policy was not malicious in any way. It was primarily written to maintain order and avoid conflict where opposing groups gathered. It was designed to promote campus safety while still protecting free speech.

FIRE reported that Van Tuinen states he now “will be able to engage in free discussion on campus.”

He was able to engage in free discussion before, during and after this incident. He was not stopped from handing out U.S. Constitutions or from videotaping on campus. FIRE further misrepresented a clerical staff member by claiming the individual was an administrator.

The facts are elusive to the media covering this story. Last week, the only news organization that bothered to contact the district for information was The Modesto Bee.

In addition to not raising any issues related to policy beforehand, a videotape was edited and posted on the Internet and on FIRE’s website that highlighted the blindsiding of a clerical employee at her desk. Unfortunately, as a result, several employees received and continue to receive death threats and threats of physical violence.

Our employee safety is paramount and the misrepresentation of clerical and district staff has affected several employees’ quality of life and professional and emotional well-being.

The bottom line is that district policy was updated to read more clearly and eliminate the advance check-in requirement, among other changes, and these could have been easily addressed through our normal policy review process, which is ongoing.

Although this case has been represented as having nothing to do with money, it has been clear from the beginning that the financial component has driven this lawsuit at least in part, as evidenced by the $50,000 settlement, most of which is going to attorneys.

The reason I am writing this is to speak to the MJC community. MJC cherishes free speech and always will. The misrepresentations that have been occurring over the past six months need to be corrected.

Hopefully, now MJC can go back to the business of education. FIRE claims that they are about free speech. Now that the lawsuit has officially been settled, I have an opportunity to express my views, my free speech, which includes the facts noted above.

Dr. Joan E. Smith is the chancellor of the Yosemite Community College District.

Exhibit D: YCCD Policy & Procedure 3900 at 9/17/2013 and summary of MJC Guidelines and Procedures for requesting College Facilities for Free Speech at the time of the Constitution Day incident. Parts of 3900 are underlined by me:

YCCD Policy: 3900 Time, Place & Manner

7 The Colleges of the District are non-public forums, except for those areas designated as “free speech

8 areas”, which are limited public forums. The Chancellor shall enact such administrative procedures as

9 are necessary to reasonably regulate the time, place and manner of the exercise of free expression in

10 the limited public forums.

12 The administrative procedures promulgated by the Chancellor shall not prohibit the right of students to

13 exercise free expression, including but not limited to the use of bulletin boards designated for such use,

14 the distribution of printed materials or petitions in those parts of the College designated as “free speech

15 areas”, and the wearing of buttons, badges, or other insignia. Nothing in this policy shall prohibit the

16 regulation of hate violence, so long as the regulation conforms to the requirements of the First

17 Amendment to the United States Constitution, and of Section 2 of Article 1 of the California

18 Constitution.

20 References:

21 Education Code Section 76067, 76120, 66301

23 Adopted: June 28, 2004

24 Revision Adopted: May 13, 2009

Yosemite Community College District Policies and Administrative Procedures No. 3900

YCCD Administrative Procedure: 3900 Time, Place & Manner

6 I. The students of the District shall be permitted to exercise their rights of free expression subject

7 to the time, place, and manner policies and procedures contained in Board Policy 3900 and

8 these procedures.

10 II. The Colleges of the District are non-public forums, except for designated areas generally

11 available to students and the community, as follows:

13 A. Modesto Junior College (East Campus) the area(s) generally available to students and the

14 community is designated as the stage area Northeast section of the Quad. The Free Speech

15 boards are located in front of the Student Center.

17 B. At Modesto Junior College (West Campus) generally available to students and the

18 community is designated in the Quad area in between Yosemite and Sierra Halls. The Free

19 Speech boards are located outside the Mary Stuart Rogers Student Learning Center.

21 C. At Columbia College, the area(s) generally available to students and the community are

22 designated in Columbia College Guidelines and Procedures for Requesting College Facilities

23 for Free Speech which can be obtained at the Office of Vice President for Student Learning.

25 III. The areas generally available to students and the community are limited public forums. The

26 District reserves the right to revoke that designation and apply a non-public forum designation

27 at its discretion.

29 A. The District reserves the right to designate areas as non-public forums as necessary to

30 prevent the substantial disruption of the orderly operation of the Colleges. Areas of the

31 Colleges that are non-public forums specifically include campus offices, classrooms,

32 warehouses, maintenance yards, and locker rooms.

34 IV. The use of area(s) generally available to students and the community is subject to the following:

36 A. Persons using the area(s) generally available to students and the community and/or

37 distributing material in the areas generally available to students and the community shall

38 not impede the progress of passersby, nor shall they force passersby to take material.

40 B. No person using the area(s) generally available to students and the community shall touch,

41 strike or impede the progress of passersby, except for incidental or accidental contact, or

42 contact initiated by a passerby.

44 C. Persons using an area(s) generally available to students and the community shall not use

45 any means of amplification that creates a noise or diversion that disturbs or tends to disturb

46 the orderly conduct of the campus or classes taking place at that time.

Administrative Procedure

Yosemite Community College District • Policies and Administrative Procedures

3900 Time, Place & Manner Page 3 of 3

2 D. No persons using the area(s) generally available to students and the community shall solicit

3 donations of money, through direct requests for funds, sales of tickets or otherwise, except

4 where he or she is using the area(s) generally available to students and the community on

5 behalf of and collecting funds for an organization that is registered with the Secretary of

6 State as a nonprofit corporation or is an approved Associated Students Organization or club.

8 E. Persons using the area(s) generally available to students and the community shall not

9 disrupt the orderly operation of the college.

11 F. Unauthorized camping is prohibited.

13 V. All persons using the area(s) generally available to students and the community of the colleges

14 shall be allowed to distribute petitions, circulars, leaflets, newspapers, and other printed matter.

15 Such distribution shall take place only within the area(s) generally available to students and the

16 community. Material distributed in the area(s) generally available to students and the

17 community that is discarded or dropped in or around the area(s) generally available to students

18 and the community other than in an appropriate receptacle must be retrieved and removed or

19 properly discarded by those persons distributing the material prior to their departure from the

20 area(s) generally available to students and the community that day.

22 VI. Posting: Students shall be provided with bulletin boards for use in posting student materials at

23 campus locations convenient for student use. All materials displayed on a bulletin board shall

24 clearly indicate the author or agency responsible for its production, the name of the person

25 requesting the posting, and shall be dated and approved by the Student Development and

26 Campus Life Office on the East and West Campus for Modesto Junior College, and the designee

27 of the Learning Support Services office at Columbia College.

Two other YCCD documents are relevant to the Rob incident here. In addition to YCCD Policy and Procedure 3900 above, there is a "Modesto Junior College Guidelines and Procedure for Requesting College Facilities for Free Speech," and a "Limited Public Forum Request Form" that must be filed to request use of the free speech areas. These latter documents are difficult to find now that they have been replaced, but they were published by FIRE as attachments to Robert Van Tuinen's lawsuit against MJC. Since they are in PDF form, I cannot reproduce them here, but here is a summary of their pertinent parts:

The first document is titled, "Modesto Junior College Guidelines and Procedure for requesting College Facilities for Free Speech." The very title of this document makes clear that persons wishing to exercise Free Speech must request the use of free speech facilities. Its first paragraph states that "Colleges of the District are non-public forums, except for those areas on each campus designated as "free speech areas," which are deemed limited public forums. The second paragraph informs us that MJC has "established such regulations and procedures to provide students and community members with the opportunity to exercise their right of expression." MJC shall identify appropriate locations on campus to be used as a limited public forum." It then tells us that the limited public forum on MJC (East Campus) is the area generally available to students and the community, designated as the stage area northeast of the quad.

On the second page, under Guidelines, section 8, we are told, "Refusal to cooperate with the above guidelines will subject the user to possible punitive action, including, but not limited to, … denial of further use of Free Speech Areas; Discipline; Probation; Suspension; Expulsion and/or Removal from campus. Under Procedures, we are told that "To use the free speech areas, student groups or individuals must submit a completed "Limited Public Forum Request Form" to the Office of Student Development and Campus Life for approval not less than five (5) working days prior to the proposed date of use." Moreover, no individual or group may reserve free speech areas more than eight (8) hours per semester. The same restrictions apply to non-students and Off-campus groups, and "No last minute requests are permitted." So, free speech is allowed only in the designated Free Speech Area, and a person wanting to reserve the area for the exercise of her free speech does need to apply at least 5 working days in advance by filling out the "Limited Public Forum Request Form."

Exhibit E: U.S. & CA Constitutions, & Relevant California Ed Codes

U. S. Constitution: First Amendment: Congress shall make no law … abridging the freedom of speech, or of the press.

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 2. (a) Every person may freely speak, write and publish his or

her sentiments on all subjects, being responsible for the abuse of

this right. A law may not restrain or abridge liberty of speech or

press.

CA. Ed. Code Section 48950

September 30, 1992

Summary:

In addition to the First Amendment to the U.S. Constitution, states can provide additional free speech protection their own citizens by enacting state laws or regulations. California Educ. Code Sec. 48950, also known as the "Leonard Law," does just that. California is the only state that has enacted a law that prohibits private high schools from making or enforcing any rule that would subject a student to disciplinary action for engaging in expression (on or off campus) that would be protected by the First Amendment or the California Constitution's free expression provision if it occurred off campus.

The legislative history of the law states: "It is the intent of the Legislature that a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus."

- Section 4(b) of Stats.1992, c. 1363 (S.B.1115)

CA Ed Code Section 48950

(a) School districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.

(b) Any pupil enrolled in a school that has made or enforced any rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney's fees to a prevailing plaintiff in a civil action pursuant to this section.

(c) This section does not apply to any private secondary school that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization.

(d) Nothing in this section prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.

(e) Nothing in this section shall be construed to supersede, or otherwise limit or modify, the provisions of Section 48907.

(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations.

Calif. Education Code 66301:

66301.  (a) Neither the Regents of the University of California, the

Trustees of the California State University, the governing board of

a community college district, nor an administrator of any campus of

those institutions, shall make or enforce a rule subjecting a student

to disciplinary sanction solely on the basis of conduct that is

speech or other communication that, when engaged in outside a campus

of those institutions, is protected from governmental restriction by

the First Amendment to the United States Constitution or Section 2 of

Article I of the California Constitution.

   (b) A student enrolled in an institution, as specified in

subdivision (a), at the time that the institution has made or

enforced a rule in violation of subdivision (a) may commence a civil

action to obtain appropriate injunctive and declaratory relief as

determined by the court. Upon a motion, a court may award attorney's

fees to a prevailing plaintiff in a civil action pursuant to this

section. [ … }

   (f) An employee shall not be dismissed, suspended, disciplined,

reassigned, transferred, or otherwise retaliated against solely for

acting to protect a student engaged in conduct authorized under this

section, or refusing to infringe upon conduct that is protected by

this section, the First Amendment to the United States Constitution,

or Section 2 of Article I of the California Constitution.

Calif Ed. Code 70902.

70902.  (a) (1) Every community college district shall be under the

control of a board of trustees, which is referred to herein as the

"governing board." The governing board of each community college

district shall establish, maintain, operate, and govern one or more

community colleges in accordance with law. In so doing, the governing

board may initiate and carry on any program, activity, or may

otherwise act in any manner that is not in conflict with or

inconsistent with, or preempted by, any law and that is not in

conflict with the purposes for which community college districts are

established. […]

   (b) In furtherance of subdivision (a), the governing board of each

community college district shall […]

   (7) Establish procedures that are consistent with minimum

standards established by the board of governors to ensure faculty,

staff, and students the opportunity to express their opinions at the

campus level, to ensure that these opinions are given every

reasonable consideration, to ensure the right to participate

effectively in district and college governance, and to ensure the

right of academic senates to assume primary responsibility for making

recommendations in the areas of curriculum and academic standards.

   (Effective Jan 1, 2014)

Calif. Ed. Code 76120

Section 76120. Exercise of free expression by students; adoption of rules and regulations

The governing board of a community college district shall adopt rules and regulations relating to the exercise of free expression by students upon the premises of each community college maintained by the district, which shall include reasonable provisions for the time, place, and manner of conducting such activities.

Such rules and regulations shall not prohibit the right of students to exercise free expression including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, and the wearing of buttons, badges, or other insignia, except that expression which is obscene, libelous or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on community college premises, or the violation of lawful community college regulations, or the substantial disruption of the orderly operation of the community college, shall be prohibited.

Calif. Ed. Code 94367

94367.  (a) No private postsecondary educational institution shall

make or enforce a rule subjecting a student to disciplinary sanctions

solely on the basis of conduct that is speech or other communication

that, when engaged in outside the campus or facility of a private

postsecondary institution, is protected from governmental restriction

by the First Amendment to the United States Constitution or Section

2 of Article I of the California Constitution.

   (b) A student enrolled in a private postsecondary institution at

the time that the institution has made or enforced any rule in

violation of subdivision (a) may commence a civil action to obtain

appropriate injunctive and declaratory relief as determined by the

court. Upon motion, a court may award attorney's fees to a prevailing

plaintiff in a civil action pursuant to this section.

   (c) This section does not apply to a private postsecondary

educational institution that is controlled by a religious

organization, to the extent that the application of this section

would not be consistent with the religious tenets of the

organization.

   (d) This section does not authorize the prior restraint of student

speech.

__________________________________________________________________________

Exhibit F: Holly’s Evaluation, 2013:  Bill Anelli’s Peer Review, Dean Hudelson-Putnams’ Evaluation, & Holly’s Reply.

Bill Anelli’s Peer Observation, Oct 24, 2013:

APPENDIX C-5b: PEER OBSERVATION FORM FOR INSTRUCTIONAL FACULTY

□ Modesto Junior College

□ Columbia College

YCCD Faculty Evaluation

Peer Observation Form for Instructional Faculty

Evaluation of Professor William Holly		Reviewed by Bill Anelli
Philosophy 111	Section		11:40 am to 12:30pm, October 24, 2013

Instructions: Record your observations of each of the four major categories listed below. Use the comment box to note both areas of commendation and suggestions for improvement. Be specific and descriptive. The bullets are suggested items for consideration within each category, and therefore should not be construed as a checklist. Use a separate form for each observation visit. (This form is available electronically at http://www.yosemite.edu/hr/documents.htm)

ORGANIZATION	COMMENTS
LECTURE ORGANIZATION I observed Professor Bill Holly’s PHILO 111 Ethics class on October 24^th from 11:45pm to 12:30pm in Room B128, Sierra Hall. Bill Holly began the class on time (I arrived a few minutes after the start of his class), and I left at 12:30 pm. I conducted the student survey first and then observed his class. Professor Holly’s class was focused on a Peter Singer reading from Ethics: History, Theory, and Contemporary Issues, 5^th edition by Cahn and Markie, Famine, Affluence, and Morality. The purpose of the class as I understood it was for Prof. Holly to carefully review Peter Singer’s arguments with the students, and consider various objections or supporting evidence for or against Singer. At the end of the class. It would be hoped that students would have a decent grasp of the structure of Singer’s arguments, objections that Singer raised himself to his views, responses that Singer gave to the objections and then a discussion in which Prof. Holly help facilitate students to think through these issues on their own. The lecture was not clearly organized to me and I did not observe a careful working through of Singer’s actual arguments. Instead the lecture and conversation drifted from point to point – some of it unrelated to Singer’s actual arguments. Aside from a list on the board of various sufferings or pains that humans experience there was little or no board work in which singer’s arguments were outlined. At times Prof. Holly did ask students to turn to this or that page. However, there was no sustained examination of Peter Singer’s actual text or Singer’s actual argument including responses to objections raised by Singer himself. As a result the lecture was generally a tendentious response to Singer’s argument with a few philosophical questions raised here and there. Nor were there serious challenges to students’ reading of Singer – whether they agreed or did not agree with them. Often the presentation was entertaining and very funny, but I did not find it to be a careful, accurate reading, or modeling of the reading, for the students. Professor Holly appears to be on track given the tentative schedule in his syllabus. SYLLABUS ORGANIZATION: Prof. Holly’s syllabus states the department learning outcomes, the required text, a statement that the BBSS office is too busy to relay messages or papers to him, instructor contact information, and a grade breakdown based on exams and summary-commentaries on the readings. He also includes an overview of the course, which include standard ethical theory and applied ethics, including a focus on government welfare programs, affirmative-action, child support laws, and freedom of speech. He emphasizes as well in his syllabus that students need to be able to explain and evaluate arguments on both sides of the issues. Holly also emphasizes that much of what will be learned will be given in lecture and not the book. He includes a statement on plagiarism and a detailed tentative schedule of readings from the text. Perhaps 20% of the course includes handouts on affirmative-action, child support, and alimony. He also provides midterm notes which are summaries of philosophers such as John Stuart Mill, John Rawls, Peter Singer. Finally, Prof. Holly suggests that students visit his own libertarian blog where they can review his long treatises against climate change, deconstruction, and other issues.	See below for further comments
PRESENTATION	COMMENTS
As stated above, the presentation was fairly simple: Prof. Holly raised various points made by Peter Singer essay in a tendentious manner. Students raised questions and Prof. Holly responded briefly and then continued with his lecture. Aside from an initial list of “pains and sufferings” on the board, I did not observe any careful attempt to reconstruct the specifics of Singer’s argument. Although he does include midterm notes for the students that do cover aspects of the philosophers, including Singer (see below).	See below for further comments
INSTRUCTOR-STUDENT INTERACTION	COMMENTS
Of the roughly 26 students in attendance, about one third asked questions and participated in the discussion. So in terms of interest and participation there was good instructor-student interaction. However, in terms of the instructor carefully querying students to see that they accurately understood the reading and that there criticisms or comments in favor of the reading or relevant and on target, there was very little of this sort of interaction between instructor and students, and very little careful challenging by the instructor of students views, whether they were in favor of or against Peter Singer. All of the discussions were conducted with the entire class as a whole with Holly. There were no dyads, small group breakout discussions, etc. While conducting the survey two students independently asked me if they were legally required to complete the survey. One student in particular was very concerned that he would be disciplined by the college if he did not fill out the survey. I explained that since the survey is anonymous there is no way anyone would know what the student said and that he was of course free to disregard the survey if he wished. Another student asked me if the survey was a standardized survey, ie, if all faculty receive the same survey or whether it was specifically designed for Mr. Holly. I explained that all faculty receive the same survey, as I had stated in my initial evaluation statement to students (per the YFA contract). I have conducted many instructor evaluations over the years and I have never encountered such questions before.	See below for further comments
CONTENT	COMMENTS
In a philosophy class, when we are assigning primary texts to our students and then discussing them in class pedagogical principles should be emphased such as fidelity to the text (which simply means accurately restating the arguments in the given text, and helping students to do the same) , charity to the text (which means to give the benefit of the doubt or even consider ways in which the author could’ve done a better job at making their case), and of course an evaluation of the text’s arguments with our students. Evaluation should, ideally, not commence until the arguments in a text are accurately restated – including objections and responses to those objections by a given philosopher. Ideally an instructor might also bring in charitable responses to obvious flaws in a philosopher’s argument – often these appear in the peer-review literature on a given issue. During the evaluation stage, instructors should not push students toward a favored view of the instructor but instead should challenge students to think for themselves on these issues and that often means challenging them on their views - even views that we personally agree with. During the argument reconstruction stage of lecture or discussion the argument should not accurately, and charitably, represented instead of distorted in ways that will guarantee a favored evaluation. What I observed in Professor Holly’s treatment of Peter Singer in the class were gross distortions of Peter Singer’s actual arguments and positions, and numerous fallacies such as ad hominem and strawman fallacies by the instructor. Often the discussion veered into unrelated topics that only cursorily related to the specific and complicated arguments raised by Peter Singer. Often attacks were made on Peter Singer’s views without any discussion that Singer himself had already addressed these attacks in the very reading it was being discussed. So I did not see the principles of fidelity, charity in place. And therefore, the evaluation of the reading was extremely hard to follow.	See below for further comments

FURTHER CONTENT COMMENTS/SUGGESTIONS (Lecture and presentation) – Professor Holly would do well to structure his lectures such that more focus is given to accurately restating the actual arguments by the philosophers as they appear in the text and to provide outlines of the arguments made for example. Professor Holly makes many of his own writings on these philosophers available to students – either as study guides or as long essays of his own. I would suggest that he rely on peer-reviewed scholarly summaries of these works (as are often found in various anthologies). Scholarship requires that we do our best to present students with peer-reviewed summaries of works from the academy, from relevant peer-reviewed journals, from university presses. For example if Professor Holly publishes in a relevant peer-review journal his understanding or critiques on various issues, then this would be an excellent sort of material to share with students.

Professor Holly does include some “midterm notes” for students that summarize different philosophers’ views. I thought the summaries were good – much better than what I had observed in the classroom. However for a couple of them (Rawls and Singer) he appends a tendentious evaluation that often distorts the actual views of those philosophers. I did not see a similar evaluation for Hobbes and Mill nor a tendentious evaluation therein.

Holly’s SQ assignments appear to be excellent. I would recommend however, some examples of how to develop one’s reading comprehension and argument analysis skills. Reading and tracking the arguments by philosophers is difficult and more focus should be given to helping students in this manner.

Finally, Professor Holly might consider including other ethical framework as well – for example virtue ethics.

COMMENTS ON THE EXAMS: The midterm exam that covers ethical theory seemed quite good. I liked the “fill in the blank” approach and how Holly creates context for students. However the final exam appears to be overly focused on an unusual example of applied ethics: child custody law in California. Holly provides students with some lengthy analyses and tendentious readings by Holly of very detailed intricacies of child custody in California. I also observed similar handouts on affirmative action, punishment and negative reinforcement as well as an essay on the Euthyphro.

My suggestion here is that Professor Holly would do well to include peer-reviewed, scholarship-based pro/con essays on these issues – ie, on child custody, on affirmative action, on divine command ethical theory instead of his own unpublished material. For example, selecting an anthology that covers both ethical theory and applied ethics. My understanding of academic freedom is that while professors are free to explore different issues and to weigh in with their own evaluations of said material, this should occur within the context of academic quality – ie, fidelity, charity, and in relation to peer-review scholarship in one’s own field. We should primarily, be requiring of our students that they read published material based on principles of scholarship.

In addition, please answer the following questions:

What do you believe the instructor has done especially well in conducting this course?

Please see above.

What might the instructor do to enhance the course? Is there anything else you would like to add?

Please see above

Dean Hudelson-Putnam’s Evaluation of William Holly, Nov 26, 2013:

To: Susan Kincade

Vice President of Instruction

From: Cece Hudelson-Putnam, Dean

Business, Behavioral & Social Sciences

Date: 26 November 2013

Subject: Evaluation of William Holly

_____________________________________________________________________________________

William Holly is an adjunct instructor in Philosophy at Modesto Junior College. He is being evaluated this semester as periodic review. Bill was observed by his peer, Bill Anelli, a fulltime instructor in Philosophy, and by me, in my role as division dean.

Bill is a detailed presenter and has a strong presence in the classroom. His voice is good and he directs the course well as he presents lecture materials. Bill uses the white board to identify key terms and lectures. The majority of class time centers upon Bill’s analysis and evaluation of class readings. Class is interspersed with questions or comments from students, about a quarter of the class participated. Bill needs to allow students to ask more questions and engage in dialogue during the class session. On my visit, I saw about 4 students trying to ask questions for the entire session, despite raising their hands multiple times, Bill did not call on them.

Bill Anelli, the peer observer, found quite a different classroom environment. Mr. Holly’s voice seemed quiet and difficult to understand. Bill did not use the white board nor direct the class to engage in a systematic evaluation of the readings. Mr. Holly did allow questions from students, yet failed to follow up on their questions with any substantial dialectical exploration of the student’s reasoning.

Student surveys were distributed in Bill’s Philosophy 111 class, 31 students participated. 84% of the students surveyed strongly agreed that Bill returns exams and assignments in a timely manner. 78% of the students strongly agreed that Bill is enthusiastic about the subject. 74% strongly agreed that he encourages creative and/or critical thinking. 40% of students disagreed that his presentations address different learning styles, and 20% disagreed that Bill answers questions effectively. 22% of the students would not take another class from Bill, and 17% disagreed that he encourages in – class participation.

When surveyed “What has the instructor done well?” written comments included;

“Explains everything very well, makes it to where I understand the material.”

“I feel that the instructor is funny, has a great sense of humor when it comes to philosophy. I think he’s a great teacher and covers the subject matter very thoroughly.”

“Talking with students. He really brings the material across in an easy to understand fashion and makes
the class fun and engaging.”

“Very passionate about subject matter.”

Student suggestions to enhance the learning experience included integrating a variety of teaching methods, such as power points or writing more on the board, for visual learners in order to break up long lectures.

The Philosophy department would like see Bill adapt his courses to the norms established within the department to standardize class expectations and student learning outcomes;

1. Assign primary texts in philosophy. Secondary texts should be published/peer-reviewed texts based on scholarship in the field.

2. Present multiple perspectives of each school of thought, focusing upon teaching the student how to
evaluate an argument independent of one’s ethical or academic interpretation. This focus enables the
faculty member to facilitate the student’s own analysis and struggle with the material.

3. Lectures should include some form of argument reconstruction of the given text. For example, an
    outline of the argument would be presented visually on the board or via power point to the students.
    He should carefully work through the actual argument with students before he proceeds to the
    evaluative phase.

4. Integrate the use of multiple teaching tools in his class; inclusion of power point presentations, web-
based software, videos, discussion, group activities, or student presentations.

Bill has been given a “Satisfactory, with recommendations for improvement” for this review. As articulated in the YFA contract, he will be observed next semester by a different peer observer to ensure that he has met the conditions for improvement identified above.

Bill is a valuable adjunct in the philosophy department at MJC. I encourage him to work more closely with the fulltime Philosophy instructors to share techniques and meet department norms.

William Holly’s Formal Response to the Dean’s evaluation, Dec 12. ’13:

To: Cece Hudelson-Putnam, Dean

Business, Behavioral, and Social Sciences

From: William Holly

Date: 12 December 2013

Subject: Formal response to the evaluation of William Holly received 26 November 2013

_____________________________________________________________________________________

Dear Cece,

Before I say anything else, I do sincerely want to thank you for the kind things you said about me in your written evaluation, and I also want to thank you for being so friendly and for taking extra time to discuss my evaluation with me on the 26th. I thank you as well for your offer to try to get me class assignments in the future that are at times more likely to fill. You are very personable, and everyone (including me) likes you. However, I have no choice but to lodge this complaint because it seems clear that (despite the kind things you wrote) my competence and integrity as a philosophy instructor have been attacked here, and I am being threatened with loss of my job.

On August 26, 2005, I received a YCCD Service Award for outstanding service to the YCCD. So it seems that I have been teaching philosophy at MJC for some 18 years. Most of that time I have been teaching a 60% load, plus summers when I could get it, and most of those 18 years I have been the only person teaching Ethics here. I would like to be able to get copies from my personnel file of prior evaluations by former Deans of mine (like Dean White, Dean Zamora, and Dean Eccles) and letters of recommendation by former instructors like Ben Starr, as evidence of my reputation as a valued instructor here.

In my 18 years of teaching here, I never before have received a less than satisfactory evaluation. In the past, minor suggestions sometimes were made (such as that I need more eye contact), but never has it been suggested that my teaching was so bad that I should lose my job if I had not remedied that teaching defect by the next semester. And, the language of "Satisfactory with recommendations for improvement" is clear: I can lose my job if my evaluation next semester does not show that I have met the identified conditions of improvement. Of course there always is room for improvement, and I welcome friendly and helpful suggestions. But, as I point out in my later discussion of the 4 recommended areas of improvement, those recommendations that are reasonable can be satisfied and easily verified without another class observation.

So, I must say that an impartial outside observer would think that there is something very suspicious about this sudden disfavor in which I find myself. Did you in your observation of my class find my teaching to be inferior? You did not lead me to believe so. After the class, you came up and told me how much you had enjoyed it, and said that the topic was one that especially interested you. In your written evaluation, you say, "Bill is a detailed presenter and has a strong presence in the classroom. His voice is good and he directs the course well as he presents lecture materials. Bill uses the white board to identify key terms and lectures. The majority of class time centers on Bill's analysis and evaluation of class readings. Class is interspersed with questions or comments from students, about a quarter of the class participated." Well, perhaps I am easy to please, but this sounds like strong praise to me, not a description of someone who needs to be re-evaluated next semester: "… detailed presenter… strong presence … voice is good … directs class well … interspersed with questions … a quarter of the class participated…" Your main criticism seemed to be that less lecturing and more discussion would be good, and that 4 people with raised hands never got recognized. Well, I do try to make certain that different people get to talk. But I do have a certain amount of material that I need to cover each time, and I think that the fact that many people were making comments shows that they too found the topic interesting. (You know you are doing something really wrong when NO hands go up.)

By the way, students generally seemed happy with class discussion. Adding "strongly agree" and "agree" to get an "agree" total, 84% agreed that I encourage class discussion, 80% agree that I answer questions effectively, 85% agree that I create a positive learning environment, 87% agree that I am respectful of differing viewpoints, and 91% agree that I encourage creative and/or critical thinking.

The only other criticisms you seemed to make were in your 4th paragraph where you pick a few of the comments from the student survey. Some of them are favorable to me, and I thank you for that. However, that whole paragraph seems biased against me, for reasons I cannot understand. You cite 7 percentages. The first 3 are in my favor, the last 4 are not so favorable. HOWEVER, note that in the last 4, you add the "disagree" to the "strongly agree" to get a "disagree" percentage, and in none of those cases do you say how many agree, which is an omission that makes my ratings by look much worse than they are. Moreover, when you are citing the "agree" percents, you do not add the "strongly agree" to the "agree" to get a "agree" total. Obviously this makes the "disagrees" seem to outweigh the "agrees" in a manner prejudicial to me. To illustrate how biased this is, let me follow your lead in adding "strongly agree" and "agree" to get an "agree" total in the same way that you add "disagree" and "strongly disagree" to get a "disagree total." Let me now list your seven rankings in parallel order, putting yours on top, and the more favorable rating immediately below it, with the favorable percent in bold numbers:

84% of students strongly agreed that Bill returns exams on time.

100% of students strongly agreed or agreed that Bill returns exams on time.

78% of students strongly agreed that Bill is enthusiastic about the subject.

91% of students strongly agreed or agreed that Bill is enthusiastic about the subject.

74% strongly agreed that he encourages creative and/or critical thinking.

91% strongly agreed or agreed that he encourages creative and/or critical thinking.

40% disagreed (or strongly disagreed) that his presentations address different learning styles.

60% agreed or strongly agreed that his presentations address different learning styles.

20% disagreed (or strongly disagreed) that Bill answers questions effectively.

80% agreed (or strongly agreed) that Bill answers questions effectively.

22% of students would not take another course from Bill.

78% would take another class from Bill.

17% disagreed (or strongly disagreed) that he encourages in-class participation.

84% agreed or strongly agreed that he encourages in-class participation.

Now, if we follow your example of adding the "disagree" and "strongly disagree" to get a "disagree" total -- that is to say, if we add "agree" and "strongly agree" to get an "agree total", and if we use the higher percents in our illustration, then your 4th paragraph would read like this:

100% agree that Bill returns exams and assignments in a timely manner, 91% agree that Bill is enthusiastic about the subject, 91% agree that he encourages creative and/or critical thinking, 60% agree that his presentations address different learning styles, 80% agree that Bill answers questions effectively, and 84% agreed that Bill encourages in-class participation.

Isn't that much better? And, doesn't it convey a much more accurate (much less biased) assessment of how well I do in the classroom?

So, far then, your own observations in your evaluation of me (when the inadvertent mathematical distortions mentioned above are removed) seem quite favorable to me. What then is the case for giving me the most unfavorable evaluation I have had in 18 years? Are my student evaluations bad? Well, you quoted three very nice individual comments. But, read the student comments again. Of the first 22, 21 are favorable. And, of the remaining 23, 10 are favorable. That means that about 75% of the individual comments are favorable. Many of them are V ERY favorable to me, saying such things as "Professor is great, Thank you professor Holly, This is my favorite class and I love it -- I love the way he teaches, His teaching method is great, He's my favorite professor this year, He's very good at showing all arguments for and against a theory, He gives us great examples, Keeps my attention -- I enjoy coming to the lecture, Holly has a lot of knowledge and is a great person at heart, He really brings the material across in an easy to understand fashion and makes the class fun and engaging, Holly has done a great job interpreting the readings, W.J. Holly has performed an excellent job at teaching his students how to analyze, and more importantly, critique ethical theories even when they contradict the learner's personal morals, He is a great philosopher -- He knows his stuff, Creates an environment that encourages students to speak, The instructor encourages debates so that we are able to see different student views, Yes, the classes and subjects are clear and easy to understand, the instructor is funny and has a great sense of humor when it comes to philosophy --I think he's a great teacher and covers the subject matter very thoroughly." I do not see how any impartial person can read these student comments and think I am anything but an excellent teacher. But, let us look again at the summaries: