Tapes Reveal Cal Poly’s Contempt for Truth, Rights, and Freedom of Expression

SAN LUIS OBISPO, CA — Audiotapes in the possession of the Foundation for Individual Rights in Education (FIRE) show that a student at California Polytechnic State University (Cal Poly) was unjustly punished for posting, in a public lounge, a flier that some students considered “offensive.” FIRE came to the defense of the embattled undergraduate student, Steve Hinkle, in April 2003. Despite FIRE’s efforts to resolve the case amicably and discreetly, Cal Poly persists in its injustice, its deceit, and its abandonment of its moral and constitutional obligations.

“There are at least three terrible wrongs here,” said Greg Lukianoff, FIRE’s director of legal and public advocacy. “First, Cal Poly tramples on the First Amendment rights of its own student. Then, they hold a kangaroo court and trample on his due process rights. Finally, they shamelessly evade and distort the facts of what actually occurred. Fortunately for the truth, and unfortunately for the Cal Poly administration, we now possess the tape recording of Hinkle’s sham trial. This scandalous and revealing case is fully documented.”

On November 12, 2002, Hinkle, a member of the Cal Poly College Republicans (CPCR), posted fliers advertising a speech by Mason Weaver, author of It’s OK to Leave the Plantation. In that book, Weaver, who is black, argues that dependence on government programs places many African-Americans in circumstances analogous to slavery. When Hinkle sought to post a flier on a public bulletin board in the Multicultural Center, listing the speaker, his title, and the time and place of the lecture, several students approached him, claiming that they were “offended” by the flier. One student contacted the university police. In January 2003, Cal Poly charged Hinkle with “disruption” of a “campus event.” (The offended students later claimed that they were having a meeting, but by the university’s own records and according to the testimony at the hearing, the area was a public lounge and there was no indication at the time that any meeting was taking place.) The university subjected Hinkle to a seven-hour hearing and found him guilty. He was ordered to write letters of apology to the offended students, risking penalties up to expulsion if he refused. He has refused and is protected now only by the publicity surrounding his case.

FIRE wrote to President Warren J. Baker twice, urging him to restore Steve Hinkle to his rights. Hinkle explicitly waived privacy rights with respect to FIRE staff, thus permitting Cal Poly to discuss the case with FIRE. Cal Poly’s general counsel responded to the first letter, of April 2003, only to dismiss FIRE’s concerns without meaningful discussion. On June 30, FIRE alerted the public to the abuses at Cal Poly. FIRE then sent a second letter, which was also sent to the Board of Trustees and to Cal Poly donors. President Baker has not responded.

In response to widespread publicity, however, his administration sends an electronic form letter—available on FIRE’s Web site at http://www.thefire.org/issue.php?doc=calpoly_form_response.html—to anyone who inquires about the case. In that statement, Cal Poly simply denies any violation of the First Amendment. Further, it claims that “several statements attributed to Cal Poly officials…have been complete fabrications.” FIRE, however, now makes available on its Web site a transcript of the entire proceeding against Steve Hinkle. That transcript confirms all of FIRE’s public statements on the case. It also shows what passes for justice at Cal Poly.

Contrary to Cal Poly’s claim that this case involves “student conduct,” not speech, the testimony of all of Hinkle’s accusers plainly shows that the content of Steve Hinkle’s flier lies at the very heart of the charge against him. Although Steve Hinkle was found guilty of disrupting a meeting, the tape reveals that no notice of a meeting was posted; that no meeting had been formally scheduled; and that no meeting was underway when Hinkle sought to post the flier. Hinkle’s accusers admit that they approached him first. Above all, every witness cites the content of his flier as the essential element of the “disruption.” As one complainant testified, Hinkle was told, “Don’t put that up in here. That’s very disrespectful.” The complainant added that Hinkle asked why it was “disrespectful,” and was told, “‘Well, read it,’ meaning, ‘Read the flier.’”

The tape supports Hinkle’s contention that he was targeted for being a member of the Cal Poly College Republicans (CPCR). Indeed, his accusers testify that they had been talking about the “offense” of the CPCR fliers earlier that day.

The neglect for fundamental fairness and due process by Cal Poly is revealed in vivid detail on the tape. Director of Judicial Affairs Ardith Tregenza, who was prosecuting the case, could not even define “disruption,” saying, “I don’t understand how that’s relevant to this case.” Robert Griffin presided over the hearing as both judge and jury. Griffin, who recently retired from his twenty-seven-year tenure as associate executive director of the Cal Poly Foundation, frequently questioned the relevance of Hinkle’s effort to demonstrate bias against the College Republicans, but he posed no objection when Tregenza asked Hinkle, “Can you help me to understand how you could have a poster like that and walk into a room full of African-American students and not think that there might be people who would find that offensive or that they might not take kindly to you posting that policy [sic] in what they consider to be a safe and comfortable environment?” The tape indicates that offending a group of students was the only “disruption.”

As FIRE wrote in its original letter to Cal Poly: “Cal Poly has failed appallingly in its job of preparing students to be citizens in our pluralistic democracy if they believe they can censor any speech that they dislike.”

“FIRE will use all of our resources—public, media, and even legal, if necessary—to defend the rights of Cal Poly’s students,” Lukianoff said. “We will not stop until we have secured justice. With an administration that prefers censorship to free speech and distortion to honesty, Cal Poly students need to be vigilant about their rights.”

The Foundation for Individual Rights in Education is a nonprofit educational foundation. FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, freedom of conscience, and due process on our nation’s campuses. FIRE’s ongoing efforts to preserve liberty at Cal Poly, and elsewhere, can be seen by visiting www.thefire.org.

CONTACT:
Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; mailto:greg@thefire.org
Warren J. Baker, President, Cal Poly: (805) 756-6000; wbaker@calpoly.edu
Cornel N. Morton, Vice President for Student Affairs, (805) 756-1521 cmorton@calpoly.edu
Ardith Tregenza, Director of Judicial Affairs: (805) 756-2794; atregenz@calpoly.edu
Robert Griffin, Cal Poly Foundation; rgriffin@calpoly.edu

Read the full transcript of the proceedings against Steve Hinkle here [320 KB PDF].
Read Cal Poly’s spin here.
Read Cal Poly’s findings in the case here [152KB PDF].
Read an abridged version of the transcript here.

Abridged Transcript of Disciplinary Hearing for Steve Hinkle
February 19, 2003

Note from FIRE: The following is an abbreviated version of the judicial proceedings against Steve Hinkle, a student at Cal Poly. Emphases are added. The full transcript can be seen here. For more on FIRE’s defense of liberty at Cal Poly and elsewhere, visit FIRE’s website, www.thefire.org. When reading the transcript, remember that this entire ordeal came about simply because a student tried to post an approved, factually accurate, and constitutionally protected flier on a public bulletin board in a student lounge.

FIRE prepared this transcript from a tape recording of the hearing. Explanatory comments are in italics preceding the excerpts. In order to protect the privacy of the students (other than Steve Hinkle), their names have been removed and replaced with number designations.

Early in the proceedings, Ardith Tregenza, the judicial affairs officer prosecuting Steve Hinkle, attempts to add a charge of violating the university’s posting policy to the stated charge of “disruption.” She fails to note the impropriety of adding new charges at the start of the hearing—which, of course, would deny the accused any chance of preparing an adequate defense. Although her attempts to add the charge are unsuccessful, Tregenza continually refers to a supposed violation of the posting policy throughout the hearing and, as will be seen, mentions it in her closing statement.

ROBERT GRIFFIN, PRESIDING OFFICER [RG]: The conduct giving rise to the charges against the student charged are as follows. On the evening of November twelfth, two thousand two, the student charged disrupted a student meeting at the University Multicultural Center. Is that the extent of the charge?

ARDITH TREGENZA, DIRECTOR OF JUDICIAL AFFAIRS [AT]: It is.

RG: Any amendments?

AT: He was also posting in violation of University policies.

STEVE HINKLE, ACCUSED [SH]: I have a question.

RG: Yes?

SH: Do I have to be notified of any amendments that are charged by [indistinct]?

RG: Yes, technically, if the nature of the charge is substantially amended, then you have – I can technically postpone the hearing for you to have an opportunity to review the charges.

SH: Because I don’t have any of my paperwork if the charge also contains a violation of the posting policy.

AT: I’ll go ahead and not amend the charges in order to proceed today.

[…]

AT: Today’s hearing is strictly about whether or not the student charged, Steve Hinkle, disrupted a student meeting in the University Multicultural Center. I intend to present evidence that will show on November twelfth, Steve Hinkle attempted to post a flier in violation of Cal Poly posting policies in the Multicultural Center and in doing so disrupted a student meeting that was being held there. [RG: All right – ]

SH: I just have a question. She mentioned the posting violation and I was made to understand that she retracted the charge of the posting violation.

AT: Right.

SH: So it was just mentioned in her opening statement?

AT: It wasn’t mentioned. It was mentioned in the context that we have discussed it in our informal meetings and in the information that I’ve shared with you regarding the posting policies. So –

SH: So am I being charged with a violation of posting policy?

AT: You’re being charged with disrupting the meeting.

SH: Okay.

[Note: The university’s subsequent “Finding of Facts” states that the Bible study group is not officially recognized, and that the bulletin board is in a public “student lounge area.” No “E-Plan,” by which groups schedule events, had been filed for any Bible study group session. The “Findings of Fact” also concludes that the Multicultural Center “flier posting requirements appear on the MCC room bulletin board but they were not on the bulletin board at the time of the incident.”]

###

In their testimonies, the seven students who claimed that Steve Hinkle “disrupted” their meeting demonstrate that the disruption was not caused by Steve, but rather by the plaintiff students’ attempts to censor Steve. They all concede that Steve Hinkle entered quietly. They all concede that they approached Steve Hinkle first. All but two concede that the meeting had not yet officially begun. (One claims that they had begun reading Bible verses, and another claims that they had begun watching a video.) They all concede that, at the time of the incident, they objected to the content of his flier. They all concede that Steve Hinkle was civil throughout the entire encounter. They agree that one student—Student Six—left to call the campus police. Except for Student Six, they all agree that the police were called before anyone claimed that Steve Hinkle was in violation of a posting policy. Finally, they all agree that Steve Hinkle left when he was told that he was violating the posting policy. (After the November 11th encounter, Steve did verify that he was not in violation of the posting policy.)

The testimonies of Student Two and Student Six are representative. Each of these students emphasizes the content of the flier itself, rather than any alleged “disruption” caused by Steve Hinkle.

AT: What happened at that meeting that was different that evening? Could you describe what happened that evening?

STUDENT TWO [S2]: Yeah, well, we were gathered eating pizza, you know, talking at the fellowship meeting and then the person, quote, walked in as we were speaking.

AT: Is that person here today?

S2: Yes, that person is there.

AT: Okay, that’s Steve Hinkle.

S2: Steve Hinkle. So Steve Hinkle walked in and he didn’t acknowledge any meeting there. Instead, he proceeded to go towards the bulletin board, and I understand he had a white piece of paper which was folded, and during that week that they were – that campaign was being put on a certain type of flier, and I recognized that flier by the words that were on it.

AT: Is this the flier that he had?

S2: Yeah.

[…]

S2: Then [Student 6 first name] said “Don’t put that up in here.” And he – so he stopped his attempt to put the bulletin board – the flier on the bulletin board. And [Student 6 first name] said again, “Don’t put that up in here. That’s very disrespectful. Don’t disrespect me. That’s disrespectful to me and everyone else in this room. I want to ask you to leave.”

So she did give him an opportunity to leave, but instead he insisted on, like, questioning her and confronting her. And so he asked, you know, “Why? Why can’t I put the flier up?” [Student 6 first name] said – she said “You know, because it’s disrespectful.” And he said, “Well, it might be disrespectful to you, but how do you know everyone else thinks that it’s disrespectful?” And she said, “Well, look around the room.” And then he asked again “Why?” and, like, “What’s disrespectful about it?”

And she asked – she said in response, “Well, read it,” meaning, “Read the flier.” So he read the flier aloud. “It’s okay to leave the plantation” looks kind of like, you know, as if, you know, he still didn’t get it. And then [Student 6 first name] became annoyed, and she said, “Okay if you’re trying to be smart...” She said, “I’m going to call public safety.”

And so – University police – and so she went to the back of the MCC because there are phones there, and proceeded to call campus police. And while she was doing that, she was gone for maybe [indistinct] minutes. [Student 3 full name], [Student 7 full name], and I tried to talk some sense into him and whatever, and to try to get him to see why it wasn’t okay for him to put that up. And [Student 3 first name] said, well, [Student 3 first name] and I both took the stance that, well, you know, it didn’t even meet the ASI Policy that sponsor of the event has to identify themselves on the flier. And so that was by far our objection to it.

And then he’s still, you know, persisting, asking why, you know. He didn’t think that was grounds enough not to have it posted. And [Student 7 first name] who’s a coordinator, a student coordinator at the MCC so she had the authority to say what she said, she said that, you know, even if he wanted to put it up in there, you’d have to get it okayed by the Multicultural Center coordinator, who is Mark Fabionar. And – yeah, she said, “You have to get it okayed by the coordinator.” And Steve asked “What’s his name?” and the other campus administrators that he needs to get in contact with to [indistinct] student office, because at that moment, he did want to go and see Mark Fabionar. But [Student 7 first name] said “Well, he’s not here right now. You’ll have to come back during their office hours.” And she told him the office hours, which were, like, nine to five each day. And he ignored all that information and then he left.

[…]

SH: The first thing that was told to me was “Don’t post that flier there.” Is that what you already said?

S2: M-hmm.

SH: – is “Don’t post that flier there.” And everybody told me –

S2: That that was offensive. M-hmm.

SH: Everybody told me it was offensive. Right?

S2: Well, [Student 6 first name] said it was offensive.

SH: [Student 6 first name] said it was offensive. Okay. And you said that she asked me to leave?

S2: Yeah, she asked you to leave. I remember that because I was pretty surprised that she would actually give you the opportunity to leave.

###

The students allege that Steve Hinkle had to get permission from the coordinator of the Multicultural Center (MCC) in order to post a flier. Such a rule was neither communicated to student groups nor posted on the MCC bulletin board. Aside from being irrelevant to the complaint (despite Ardith Tregenza’s attempts to introduce new charges) such a policy of prior restraint and unfettered discretion over the content of the postings would likely be unconstitutional.

S7: ...And so that’s when I said “I work here”; I stood up; I said “I work here in the Multicultural Center, and you’re not allowed to put up fliers unless you consult the coordinator, Mark Fabionar.”

###

SH: You mentioned today and you’ve also mentioned in a written testimonial that the room was full of black students.

STUDENT SIX [S6]: M-hmm.

SH: Well, what’s your significance of that statement?

S6: Because the, that’s testifying to the fact that the fliers were offensive: telling black students it’s okay to leave the plantation. And in my mind, that’s making a mockery of my history and my ancestors, slavery…

SH: Have you read Mason Weaver’s book?

S6: No.

SH: Did you come to his speaking event?

S6: No.

SH: Okay. Did you notice the flier when you told me not to put it up, or were you just telling me in general terms that I can’t post fliers there?

S6: No. I knew what it was before. I saw it in your hand.

###

Cal Poly alleges that Steve Hinkle “disrupted” a meeting of a Bible study group. In fact, all the students agree that there was no notice that a meeting was taking place. Further, the testimony shows clearly that, at the time Steve Hinkle entered the lounge, no meeting was in progress. Almost all of the students claim that they were talking with each other and eating pizza at that time. (One student claims that a meeting had, in fact, begun, and another student claims that they had started watching a video. No other student makes either of these claims.)

SH: Do you know if there was any sign on the door saying there was some type of Bible study going on?

STUDENT THREE [S3]: No, there wasn’t any posts.

SH: Do you recall anybody telling me that I’d interrupted a Bible study? The eyewitness accounts—yours as well—do say that I was told the flier was disrespectful and whatnot, but do you recall me being told of the Bible study?

S3: No, there was no mention of it.

###

SH: Did anybody tell me that there was a Bible study going on? Because in your interpretation you didn’t mention it.

S2: You probably didn’t know that there was a Bible study going on. But someone would know that there was something going on. So I don’t – the issue here is whether or not you knew it was a Bible study. The issue is that you knew it was a corporate setting, a corporate meeting of people.

SH: So nobody told me “we’re having a Bible study”?

S2: No one told you we were having a Bible study. You wouldn’t have been able to get that information unless you’d gone – come into the MCC and asked someone, which you did not.

###

By all accounts, it was Student Six who called campus police. Student Six’s testimony shows clearly that the objection was not to any disruptive behavior on the part of Steve Hinkle, but to the content of the flier itself. (The police report notes that the officers called to the lounge were responding to a complaint of “a suspicious white male passing out literature of an offensive racial nature.”) Indeed, in his questioning of Student Six, Steve Hinkle refers to the fact that his accuser called the flier “hate speech.” Student Six denies this, but Steve Hinkle then reads his accuser’s own words from a campus newspaper article.

Student Six’s testimony shows clearly that the allegation is based entirely on the content of the flier itself.

SH: And you said I asked you, “Why can’t we sit down and talk about it?”

S6: Yes.

SH: Okay. And you told me, “Take the flier elsewhere or I will call public safety”?

S6: Yes. I said, “Take that elsewhere or I will call public safety.” And then that’s when you tried to debate, even more debate, and I went and called public safety because I wasn’t, I wasn’t up for it. It was just, the timing was horrible. It really –

SH: Okay.

[…]

S6: I never claimed it was hate speech.

[…]

SH: Okay. Should I read what you said?

S6: Go ahead.

SH: “I hope my Bible study group can receive a public apology from the student printed in The Mustang Daily as well as on texts posted around campus and in the classroom for this hate speech against us.”

S6: Okay.

SH: Okay. That is in my personal file. This is information which Ardith Tregenza used in guiding this investigation and determining resolution towards me. This is appropriate for this because it’s helping me determine the emotions involved and the perceptions of the students when I entered the Multicultural Center, so that’s why I am asking the question.

[…]

RG: All right, do you recall any time where the student charged – demeanor was either threatening or abusive to you or anyone else?

S6: You’re talking about Steve’s demeanor? Was his demeanor threatening?

RG: M-hmm, or abusive?

S6: No.

RG: You called the campus police that evening. What did you tell them?

S6: I told them that there’s someone here in the Multicultural Center trying to post offensive literature.

RG: You didn’t say anything about disrupting the meeting or – ?

S6: No, not directly at that point, no.

RG: It was just to the point of the poster not being authorized or, in your opinion, being offensive?

S6: Yes, and then the meeting too – a disruption – but I did not mention that on the phone.

###

AT: The next document is a copy of the University daily radio log and the statements of the two officers who responded to [Student 6 full name]’s call. They were both unable to attend today but they send these statements.

RG: This is Exhibit G? You can take a look around here on that. Have you seen this before, Steve?

SH: Yeah, I’ve seen this before.

RG: Any questions or objections to these?

SH: Yeah, I actually should kind of make some comments about this.

RG: M-hmm.

SH: I’d like it noted, the record that the summary from the student makes no mention of a Bible study, an interruption of a Bible study, or any posting policy; it merely mentions that I was attempting to post racially, a racially oriented message.

RG: I’m sorry, the summary from the student?

SH: This is a summary of what the student, what the complaint was.

RG: Okay.

SH: And the complaint that was received by the students to University Police makes no mention of an interruption of a Bible study or posting violations. It merely says, like, “attempted to post a flier with a racially oriented message.”

RG: Okay. Let the – [pause]

SH: Again, it’s important to note that the students felt that the flier was race-motivated. And again, it makes no mention of a Bible study. This also notes the group had not put proper information on it according to policy. As we discussed at an informal meeting, there was no policy violation of the flier itself.

###

Cornel Morton, Cal Poly’s vice president of student affairs, has publicly stated that FIRE is misrepresenting his statements from the trial of Steve Hinkle. FIRE’s first press release quoted notes taken at the hearing by Steve Hinkle’s advisor, Professor Laura Freberg. In those notes, handwritten by Dr. Freberg as the hearing was in progress, she quotes Vice President Morton saying:

“You are a young white male member of CPCR [Cal Poly College Republicans]. To students of color, this may be a collision of experience.… The chemistry has racial implications, and you are naïve not to acknowledge those.”

The transcript shows that Freberg accurately recorded the essential elements of Vice President Morton’s statement. Cornel Morton has also criticized FIRE for taking his words out of context. Here are Cornel Morton’s own words, in context.

SH: Do you think that these perceptions of people based on their characteristics such as race, do you think that plays an issue in this incident? You seem to have a [indistinct] –

CORNEL MORTON, VICE PRESIDENT OF STUDENT AFFAIRS [CM]: Well, it’s clear that we have an identifiably young white male who has been self-identified as a member of the College Republicans group. And although the College Republican group, I’m certain, is not exclusively white or male, there are some implications. And on the other side of this we had a group of students of color, at least identifiably, largely students of color, and the mix, unfortunately, and the collision of experience, that is, the collision of your experience with theirs, on that day at that time was placed inside a larger context, as you recall. And namely these fliers that were posted and the concern that some had about the nature of the speaker’s message and all the rest…. And then to learn later after some investigation that the College Republicans had sponsored the speaker. I think that chemistry, if you will, without question, had racial implications, not reduced solely or purely to a matter of race. But again, I think we would be naïve if we did not acknowledge at least that; we would have to acknowledge that.

[…]

Furthermore, in his testimony, Vice President Morton acknowledges that he had the authority to dismiss all charges against Steve Hinkle. For this reason, his thoughts on the “collision of experience” are directly relevant to the abuse of justice in this case. Because he had the authority to dismiss the charges, but did not do so, he is in large part responsible for the injustice done to Steve Hinkle.

CM: And I was – in the role I had as vice president for student affairs, I was willing to in fact dismiss the charges against you.

###

The testimonies of the students confirm that what Cal Poly is calling a punishable “disruption” was really nothing more than a brief encounter (initiated by the plaintiff students themselves) that lasted only a few minutes. The “disruption” hinged on the students’ views of and negative reaction to the content of Steve Hinkle’s flier. (One student even claims that the arrival of the police—who were called by the students themselves—was an element of Steve Hinkle’s “disruption.”)

S1: The overall mood of the meeting was – pretty much disrupted everybody after the event and we really didn’t get back on topic the entire night because of that.

[…]

AT: Did Steve Hinkle’s actions disrupt the meeting for you?

S2: Oh, yes, definitely. I mean, even when we did finally start Bible study, our minds were not really focused on the Word. I mean, the lesson was dealing with how we’re supposed to feel about our neighbors, but, you know, when something like that happens, you kind of, like, wonder why have to deal with some of the crap you have to put up with, you know. And so definitely very disruptive, but very disturbing, just gotten into, so, just beyond, you know, the normal mindset so just beyond like the Word, the [indistinct] and the mindset.

[…]

AT: Okay. Did Steve Hinkle’s actions disrupt the meeting for you personally?

S3: For me personally, it did kind of rile me up a little bit, I guess. It took a while to kind of calm down and get focused back on what we were – focused and back on what we would be doing.

[…]

SH: How long do you think the whole situation took?

STUDENT FOUR [S4]: Five, ten minutes at the most. Five minutes probably, seven.

SH: When I was notified of the posting policy, did I leave right away?

S4: Yeah, to my recollection.

[…]

AT: Could you describe what happened that evening?

S6: We were having pizza for dinner, I remember that, and we were just sitting around having our pizza and – should I say his name?

AT: Yes.

SH: Steve. [AT laughs]

S6: Steve walked in and, and I noticed that [Student 7 first name] had this look on her face and she goes, “Don’t post that,” and it just kind of caught my attention because [Student 7 first name] is usually positive and she never really does anything like that, and he said, “Why?” and she said, “Well, has it been approved?” And then he goes – and then I jump in and I say, “Well, it’s offensive and [indistinct] it’s offensive.”

AT: Is this the poster that we’re speaking of?

S6: Yeah, and he looks at the flier and he looks at me and he says, “How do you know it’s offensive?” And I [indistinct] and I looked around the room and I said, “I just told you it’s offensive.” And then he said, “Well, why can’t we sit down and talk about this?” And I said “Either you can take that elsewhere or I can call public safety.” And then he proceeds to try to debate with me, and I went to the back and called public safety and let them know that we were having a disturbance and [indistinct] was trying to post offensive literature in the Multicultural Center. And I guess in the middle of that phone call he left. [indistinct]

AT: And when you went back to the front, was he there?

S6: No.

[…]

S7: …And then after that when the police came on two occasions and then the conversations after that, I mean, further disrupted the Bible study, so it wasn’t even when you left that it finished, but the police had to come and they had to get a description again of what you were wearing and then how they hadn’t seen you again and further questions.

###

In his/her testimony, Student Six even admits that the reason the students sought judicial action against Steve Hinkle was the content of his flier. Student Six describes a meeting with University administrators.

SH: What was discussed at the meeting?

S6: What was discussed at the meeting? We discussed the fliers and how they were offensive to us and how we felt. [SH: Okay.] And what would be done about that.

SH: What would be done about it?

S6: Yes.

SH: Meaning?

[…]

S6: We suggested that things be done because we felt like we were being, as it says in the Student Code of Conduct – making a mockery of our culture. We felt something should be done about it.

###

Cal Poly claims that the conviction of Steve Hinkle was based entirely on his conduct, and not on the content of the flier. As we have noted, however, the transcript shows plainly that the students who testified against Steve Hinkle all objected to the content of his flier. No one seems to have told Steve Hinkle’s prosecutor that the content of the flier should be irrelevant, however. During the trial, Ardith Tregenza confesses that the content of the flier is central to the charges against him.

Remarkably, she is also unable to give a definition of “disruption,” the very offense that Steve Hinkle is accused of committing. Cal Poly cannot claim that justice was done on its campus if its own judicial affairs officer cannot even define the offense for which a student has been found guilty.

SH: In your opinion, Ardith, was my presence a disruption of this Bible study meeting, or was the flier a disruption of the Bible study meeting?

AT: I think in my interviews with the students – I would have to say both were.

SH: Both were. [Male voice: Okay.]

SH: Can you, not in the context of this case, can you give me your – definition of a disruption?

AT: Not in the context of this case?

SH: Yes. Without referencing this incident, can you please give me your definition of disruption?

AT: I don’t understand how that’s relevant to this case, which is why we’re all here.

SH: If I’m being charged with a disruption or a disruption of academic or administrative process, I think it’s only fair to me that I understand where the Office of Judicial Affairs is coming from when they say I disrupted a meeting. [AT: I’ll – ] [RG: That’s okay, you can answer it.]

AT: I’ll-I’ll answer your question by saying I felt you went into –

SH: Without referencing this incident, could you please define disruption?

AT: I don’t have a dictionary; I’m –

SH: In your own words – I mean, I’m being charged with it, so I would hope that the Office of Judicial Affairs has a [AT: Right.] clear understanding of what it actually means to disrupt something.

AT: I think to interfere with a regular process or to cause people to do something other than they would normally do, have planned to do, anticipated doing, to shake up, to – Gosh, I feel like I’m on Jeopardy. Let’s see. That’s what comes to mind at four o’clock with no caffeine. [chuckles]

###

Cal Poly claims that, because of its obligations to the Family Educational Rights and Privacy Act (FERPA), it cannot discuss the details of the case against Steve Hinkle.

Cal Poly’s scrupulous attention to its obligations under FERPA is a new development, however. The transcript of the hearing reveals that the university ignored warnings from Fred Mills, the communications and records coordinator of Cal Poly’s own police force. Mills cautioned that requiring a student to write letters of apology with no guarantee of confidentiality could well constitute a violation of the requirements of FERPA.

Cal Poly acknowledges that Steve Hinkle has signed a limited waiver allowing the university to discuss the case with FIRE. Cal Poly’s only communication with FIRE—a letter dated May 9, 2003, before FIRE publicized the case—did not substantively address FIRE’s arguments and primarily relied on unsubstantiated denials . (That letter can be seen at <http://www.thefire.org/issue.php?doc=calpoly_cordova_response.html>.) Since receiving that letter, FIRE has written to Cal Poly again, but no response has been received.

SH: Mr. Mills, a part of the proposed resolution to Judicial Affairs is that I write letters of apology to other students, and a letter here that – here you notice it says that there’s no parameter or guarantee of the confidentiality of those letters. In your interpretation of the FERPA Act and the history of that act, do you think that such a resolution is in violation of that act?

FRED MILLS, COMMUNICATIONS AND RECORDS COORDINATOR, UNIVERSITY POLICE [FM]: I think it certainly puts the University in jeopardy.

[…]

SH: would this proposed resolution of writing letters to these students for which the confidentiality can’t be guaranteed a violation of the FERPA Act?

FM: If the statement about not being able to guarantee the confidentiality was in there, I’d say they foresaw that it wouldn’t be confidential.

SH: And knowing that, would that be a violation of the FERPA Act?

FM: Ah, I believe so.

[…]

###

At one point in the trial, Ardith Tregenza questions Steve Hinkle directly. Her questions reveal that she is basing the university’s case against him on the content of his flier.

AT: You asked me for a definition, and I’m going to ask you for a couple now. What does “disruption” mean to you?

SH: What “disruption” means to me, not in reference to this case here, this alleged incident, would be to prevent – a disruption of a meeting would be to prevent the proceedings of those meetings from occurring.

AT: What does being civil mean to you? What’s the word “civility” mean to you? What’s your description of civility?

SH: “Civility” would probably – not being rude, not using any of the curse words; civility would mean allowing for the opportunity to talk; “civility” would mean—just a general politeness toward somebody is civility. If you’re having a civil conversation with someone, you’d be kind with them, kind, patient, and whatnot.

And another thing to clarify in my definition of a disruption: I think a disruption has to be deliberate. To disrupt something, I think it means I think you deliberately need to prevent somebody from proceeding with a plan. [LF: M-hmm.]

AT: Why are you resistant to writing a letter of apology to students who have stated that you offended them and disrupted their meeting?

SH: What exactly, why are you asking me this?

AT: I guess because we tried to informally resolve this and, I can withdraw it.

[…]

AT: I guess I’m really curious about this. You said you were surprised by the hostility you received in the Multicultural Center, you were shocked, you walked into this situation blind, and I guess I – can you help me to understand how you could have a poster like that and walk into a room full of African-American students and not think that there might be people who would find that offensive or that they might not take kindly to you posting that policy in what they consider to be a safe and comfortable environment?

SH: Sure, why I was so surprised about the hostility I [indistinct]. I’ve read Mason Weaver’s book. I’ve talked with him in person. Of course, the flier lists the title of his book. The title of his book – the theme of his book is about government dependency; it refers to society as a whole as being on a type of government plantation, that we need to get off of that plantation. That’s the plantation he’s referring to. The current plantation of government dependency. I’ve read that book, I’ve had an understanding of that book, I have this understanding of his ideas in generating that, so I did not misinterpret the title of his book because I had read it.

In addition, I don’t stereotype other individuals. I don’t look at an individual’s external characteristics such as skin color and project how I feel – I don’t project stereotypes onto them like feelings, like “they would react to this a certain way because they look like this.” That’s called stereotyping, and to assume that certain people of certain physical characteristics act, behave, or feel in a specific way is the very definition of racism, and I’m not a racist, so I never – it never occurred to me to think that people who look a certain way are going to react a certain way to this. So, I know some of the students mentioned “plantation.” Plantation is not a word that’s specifically used for – in terms of slavery; however, plantation and—slavery was part of American history, and I am an American; I don’t feel restrained in using words such as “plantation” or posting a flier which it has in there because I’m worried about people are going to take offense to this. It’s a part of my history just as it is everybody else’s, and I would never assume that a certain person would be hypersensitive to such words or phrases simply based on external characteristics like color. That would be stereotyping, and I’ve never been raised to do that.

###

Toward the end of the hearing, Robert Griffin, who is presiding over the trial as both judge and jury, asks Steve Hinkle directly about whether or not a meeting had been underway when he entered the lounge.

RG: Did you notice that there were people in there with Bibles open?

SH: No, in fact — and I said this in the informal meeting, that I didn’t see a single Bible.

[…]

SH: No, the only thing I didn’t – I did not see a single Bible open. What I saw was: I saw people standing, eating; I saw people not huddled around a table or huddled around pizza. I saw people talking in small groups, talking to each other; it wasn’t like one person was talking and everybody was listening while they were eating pizza; it was like you’d expect people standing in a – anywhere eating pizza, people were talking to each other: small groups, person-to-person standing eating pizza, and that’s basically what I saw, and that didn’t occur—to be unusual to me, since I had seen people doing the same in the Multicultural Center prior to that.

RG: So if you partially went into the room, well, you partially passed the room the first time, and then when you went in with the flier, was the – it wasn’t a meeting; it was just [SH: Right.] a group of people that were in there milling around talking to each other? [SH: Right.] At what point did you realize – How close did you get to the board?

SH: Right up to the board.

RG: And what happened?

SH: As I was approaching the board to post the flier, at first I was engaged by a student.

RG: At what point did you realize you were in the midst of a group study meeting?

SH: At no point was I aware. I mean, I left there unaware that I was even in a meeting. There was no mention of a meeting; nobody told me I was interrupting a meeting; I had left there and even written this letter; in fact, I was unaware that I even entered a room where a meeting was taking place until the informal meeting with Ardith Tregenza on January tenth.

###

Ardith Tregenza’s closing statement sums up the motives behind the punishment of Steve Hinkle. Tregenza denies that First Amendment rights are involved—but, in the very next sentence, she explicitly says that the “offensive” nature of the flier was responsible for the “disruption.” She claims that the charges are based on Steve’s “being confrontational”—a statement that is contradicted by the plaintiff students’ own testimonies. She even claims that the offense hinges, in part, on his refusal to leave after he was told that “he was in violation of that posting policy”—which, of course, is not even an official charge against him. Ardith Tregenza’s own focus on the content of the flier and on the students’ testimony that they found the flier offensive shows that Cal Poly is punishing Steve Hinkle because of the content of his expression.

AT: Today I have presented evidence that proves that Steve Hinkle disrupted the students’ meeting in the Multicultural Center on November twelfth. I don’t know if he intentionally meant to disrupt them or not, though I believe that he should be held accountable for his actions. This charge and proceeding is not about the Cal Poly campus Republicans club; it’s not about Steve Hinkle’s political beliefs or his First Amendment rights. It’s about Steve being confrontational and disrespectful to the students attending the meeting that night in the MCC, when they told him they found his poster offensive and asked him to leave and told him he was in violation of that posting policy for that office. He was not frightened or threatened or intimidated; rather, I found him – the descriptions of his behavior, he was rude and confrontational and disruptive. I think Steve has said just recently in his closing statements that the students misinterpreted the flier.

And I feel that these students came here today in good faith and were able to well articulate why they found that flier offensive and that for you to say that they misinterpreted it and that they didn’t find it offensive or why they found it offensive was wrong, I think is unacceptable. You say you’re aware of past Cal Poly Republican club events and fliers having not been well received on the campus, and yet on the other hand you say you were completely surprised and shocked when you walked in there and those students didn’t take well, you know, to your poster and it just didn’t make sense to you. And I don’t really think you can have it both ways.

I think – you said it’s obvious the students were upset. You just stated that. If it’s obvious they were upset and it’s obvious that they asked you to leave, why didn’t you, you know, leave? Why didn’t you pursue your questions to them at another time, at another venue? I’m not here to pin anything on you, which was your other statement. I feel that I’m here to hold you accountable for your actions like the university holds other students. I’m not recommending or requesting a punitive sanction, but rather, a formal apology to the students who were here that night and two meetings with the university ombuds for you to discuss approaches, resources, and strategies available to you in order to accomplish your goals. I think this is the very least you can do to make amends for your behavior that night.

###

After Ardith Tregenza concludes, Steve Hinkle gives his closing statement. He states forcefully and directly that Cal Poly is punishing him because some students claimed to be offended by a flier he was posting. Despite the administration’s attempts to claim otherwise, all evidence shows that Steve Hinkle is being punished because of the content of his expression.

SH: Let me sort of paint the picture, let me sort of reiterate the picture that has been painted by all the testimonials that we’ve heard today, all the evidence, and everybody’s comments, and show that I did not disrupt the Bible study meeting by entering the Multicultural Center. First of all, the police report does not mention – excuse me – the police report does not mention a Bible study at any time; it merely mentions that I was attempting to post racially oriented material. The students have agreed that from six-thirty to seven was a fellowship period in which they eat, in which they discuss; some of them have said that they were standing and eating; they were talking in small groups. They were not huddled around the table. There was individual conversations, numerous conversations at one time, very informal. And this is the atmosphere which I saw when I looked through the window of the Multicultural Center, which was: students eating, standing, talking as individuals. Very informal. As the students have shown, that’s not uncommon—for students to sit in the Multicultural Center and eat pizza. So even these students understand why I would’ve not perceived a meeting. There was nothing outside the Multicultural Center before I entered that would indicate to me that there was a meeting taking place.

When I entered the Multicultural Center — and students have agreed with this, that I didn’t confront anybody — that actually it appeared that I went out of my way, you know, not to confront anybody. I – says I didn’t acknowledge them, no eye contact. Again no notice of a meeting. I was unaware of any e-plan for such an event. Although these students are saying this is a chartered organization, Campus Crusade for Christ, I know of no e-plan for this. And as Mark Fabionar—if I’m pronouncing that right [indistinct]—has stated, I would have to enter the Multicultural Center to find out if there was a meeting taking place in the Multicultural Center. He has stated this, that it’s posted on the wall in there, that I would have to enter to find this out. So entering, not acknowledging anybody, unaware of any type of meeting, you know, looking at this environment which seems very typical of a college campus in a public lounge, where people often hang out and sleep, I was first confronted by the students.

If I would have posted the flier, and walked out, while these students were eating and having informal conversations as individuals, they would’ve – perhaps they wouldn’t have even noticed. If they just let me post a flier and if they didn’t like it afterwards, they could’ve took it down, but they chose to initiate a dialogue with me, telling me how the flier was offensive. Not, “Excuse me, we’re having a Bible study,” but, “That flier is offensive to me,” you know, “Don’t come in here and disrespect me” and whatnot. It says that Ardith has class – excuse me, Ardith Tregenza has classified my behavior as uncivil. The student accounts say I said, “Why don’t we sit down and talk about this?” That doesn’t sound very uncivil to me. That sounds very calm and trying to clear up confusion, the confusion which I found myself in which was cleared up and explained to the students as I tried and the students say I tried, to clear up any confusion by saying, “Let’s sit down and talk about this.” There are people who said this.

Finally, one student said, “Take your flier elsewhere” — did not ask me to leave — clarify that, did not ask me to leave — told me, “Take your flier elsewhere, or I’m calling the police,” and left. And as one student said, simultaneously, as she was leaving to call the police, I was notified by one of the students that the flier needed to be approved by the Multicultural Center director, I asked for information about him so I could contact him, and when she told me, I said thank you and I left. Again, nothing uncivil. I walk into this, you know, I walk into what I perceive as an informal gathering of students, I am never informed of a Bible study meeting, and when I am informed that there is a posting policy I kindly oblige and leave promptly.

These students say I was not threatening, yet they called the police. Every student said that I was not threatening. Yet they called the police. Why would a student call the police? It’s my opinion that a lot of the emotion towards the flier came about from misinterpretation of the flier. In fact, they even told the police that I was trying to put up racially motivated material. My flier has no relevance to race; it’s about government dependency. I feel that the hostility that they felt was not because I entered their meeting, not because I interrupted their meeting, but that, you know, that they had these negative feelings toward the flier. It wasn’t me; everything that ensued after I left was because of their misinterpretations of the flier, their feelings about the flier, and everything that happened from that point on was out of my control: you know, what they chose to do, the situation afterwards.

This entire case with Judicial Affairs, I think, has been absolutely outrageous. As I’ve said before, a great effort has been made to sort of find some sort of charge, you know, with which – which would sort of stick. I know they tried other charges and, you know, they had to be dismissed—you know, we saw one charge be dismissed at the beginning of this hearing.

[…]

I’m very concerned about these recommended sanctions. They go in my educational record, as Ardith Tregenza stated; I can exclude my educational record from a graduate school. However, if a graduate school asks to acquire my educational records and uses my educational records as determining whether or not I’m fit for that graduate school, me denying them my educational records because of these, because I didn’t want them to know about this, would affect my eligibility for that graduate school. I’m very concerned that following through with these recommendations will, because of that, hinder my ability to get into a grad school in the future. I feel that asking you to follow through with these resolutions is a violation of FERPA, which we have heard today.

[…]

I can’t apologize for something that I don’t feel I did, and you know, I think it’s clear, you know, what the situation is from hearing all these students. And I would recommend that these suggested sanctions be dropped and that this entire process be stopped at this instant, and that I think it’s a shame that it’s gone this far. I think that’s it.

RG: I will privately consider the evidence presented at this hearing and submit my findings and recommendation to the Vice-Provost for Undergraduate Education, Dr. David Conn, within ten working days following the close of this hearing. This hearing is closed at five-ten on February nineteenth, two thousand and two [sic]. Thank you. Five-thirty.

[To see Cal Poly’s findings in the case click HERE]

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