Were the First Amendment rights of junior Shara Esbenshade and other local activists violated when police told them they couldn't hand out pamphlets in a U of I parking lot during the IHSA football championships in late November?

By Shara Esbenshade & Cody Bralts-Steindl

Gargoyle contributor & guest correspondent

Posted Sunday, March 11, 2007, The OG, news & in depth

[Note: Shara Esbenshade is a junior at Uni High and a frequent contributor to the Gargoyle. Cody Bralts-Steindl is a freshman at Urbana High School. This is a revised and updated version of an article that first appeared in the February 2007 issue of the Public i, the monthly newspaper of the Urbana-Champaign Independent Media Center. The case described by Esbenshade and Bralts-Steindl has already attracted national attention. The Student Press Law Center, a nonprofit organization that defends the First Amendment rights of high school and college students, published an article about the case Feb. 27. Click here for the story.]

ON THE AFTERNOON of Saturday, Nov. 25, we and other Anti-War Anti-Racism Effort (AWARE) members Durl Kruse, May Xiong, Don McClure, David Green, and Meg Miner handed out counter-recruitment pamphlets titled “What Families Need to Know About Military Recruiting in High Schools and Colleges” at the IHSA statewide football championships, where each year the Illinois National Guard recruits. AWARE is a communitywide organization working to end the war in Iraq and promote racial justice.

We were distributing fliers developed by the organization Grandmothers for Peace to provide young people who are considering joining the military with advice and an alternate viewpoint on military service.

We were handing out the fliers on the corner sidewalk and in a parking lot southwest of Florida Avenue and First Street directly in front of the National Guard, whose set-up included a trailer, a Hummer, video games, blaring music, and a bright yellow tent. The recruiters were sitting in chairs in front of the trailer when we arrived. As soon as we began distributing our leaflets, they stood up and began passing out their own literature and freebies such as pencils.

ENTER THE POLICE

After about 10 minutes, two Champaign Police Department squad cars pulled up. Three CPD officers surrounded Kruse, demanding he and the two of us move to the sidewalk. They were not polite or respectful. Their explanation at the time was that we were not allowed to distribute fliers because the University parking lot was private property.

The few University of Illinois Police Department officers who were present confirmed that fliering was prohibited in the parking lot. However, several women were in the parking lot passing out coupons for Noodles & Co. They were not told to stop until AWARE asked the University police about their activity. The recruiters were free to continue to flier uninterrupted.

Although it did not stop us from distributing the literature, our removal altered the statement we wanted to make. Our purpose was dual: to provide information and to publicly question the National Guard's recruiting tactics. The latter goal was essentially denied because moving to the sidewalk made our critique less direct.

The CPD's violation of our freedom of speech and of assembly was disturbing. Did they have the right to move us? Article 2, Part 4, Section 406 of the Student Code of the University of Illinois states, “Any individual may post and distribute leaflets, handbills and other types of materials intended to provide information about sociopolitical or educational issues and events, without prior approval, under the following conditions,” and goes on to list locations and types of materials that fit the regulations.

Our handing out literature in the parking lot seemed to fit those conditions. Not only was distributing fliers at the IHSA event legal according to University policy, but AWARE had permission from the U of I police to do so. Randall Cotton, an AWARE member, had spoken earlier with the campus police and received approval for us to flier. When Kruse met with the campus police on Nov. 27, two days after the IHSA event, Lt. Roy Acree confirmed that he had spoken with Cotton and given his approval.

SHIFTING JUSTIFICATIONS

However, it was not Acree but another officer who was on duty that Saturday and it was possible, Acree said, that the other officer was not aware of Acree's conversation with Cotton. Acree also seemed confused that the CPD had intervened in a situation he felt should have been handled by the University police. He admitted there had been a breakdown in communication.

An hour later, Cotton, Durl Kruse, and Jan Kruse met with the CPD. They spoke briefly with Sgt. Scott Friedlein, who stated that the officers were only following orders. Whose orders? His own, Friedlein answered, made upon the request of Dana Brenner, an associate athletic director in the U of I's Department of Intercollegiate Athletics.

Friedlein had not checked to see if the request was legal. When Durl Kruse showed him the Student Code he responded that he had never seen the document before. He had not been aware of any permission given to us, and he refused to acknowledge any possibility of a civil rights violation. He did state that there could have been better communication between the DIA and the University police.

On Nov. 28, Durl and Jan Kruse met with Brenner, who after hearing their story maintained that he, as the University representative in charge of the event, had the right to move us because we were on U of I property. In fact, since the U of I is a public university, its property is state property and therefore public, although the University does have the legal authority to regulate activities if they disrupt the educational environment.

Brenner did not explain why he did not want us to hand out fliers. Although Brenner is a U of I employee, he did not seem familiar with the Student Code and its policy on leaflet distribution. He stated he would review the case and contact the Kruses, but never did, nor did Brenner respond to our request for an interview.

Acree later notified Durl Kruse that the case had been discussed with the DIA and the CPD, and the case had been forwarded to the U of I's legal department for a ruling.

FOR OUR OWN PROTECTION

On Dec. 13, Acree called Durl Kruse to explain the conclusions of these discussions. Acree cited the following passage from Article 2, Part 4, Section 406-c-1 of the Student Code:

“Certain buildings, due to the nature of the activities within them, are governed by separate policies. For those buildings, appropriate restrictions as to time, place, and manner for distributing materials may be established by the agency responsible for the building. These may include, for example, requiring prior permission to distribute inside the building, or restricted distribution to designated areas only.”

Comparing the incident at the IHSA football games to the University police presence at anti-Chief Illiniwek protests, Acree stated they had moved us in order to “protect the demonstrators.”

But when the CPD approached us on Nov. 25, they told us we had to move to the sidewalk because we could not flier on private property — by which they meant University property. Lt. Acree's explanation contradicted that. As he pointed out, the sidewalk is in fact part of University property. So if the CPD were willing to let us use the sidewalk to pass out fliers, they should have permitted us to use the parking lot as well.

Although Durl Kruse could understand “protection of the demonstrators” in the case of the anti-chief protesters, he pointed out to Acree that AWARE was not demonstrating or holding signs, nor did we feel threatened in any way.

Furthermore, if we were designated a spot for our own sake, we should have been designated one we agreed to. We would have liked to be in front of the National Guard, and being removed from them lessened the impact of our actions.

BUYING FREE SPEECH

It has been more than three months since the incident took place, yet many things remain unclear: Should the CPD have handled the situation or the University police? Why did the DIA's Brenner call for our removal? Most troubling of all, why was the National Guard allowed to hand out literature in the parking lot when AWARE was not?

As it turns out, there may be a reason for the National Guard's favorable treatment by the police. Durl Kruse called IHSA after Nov. 25 and spoke with Assistant Executive Director Anthony Holman, who revealed that the National Guard is a sponsor of IHSA.

He would give no further information, explaining that the specifics of IHSA contracts with sponsors are not public information; only an administrator of a member school may request it. In mid-December, Director/Principal Kathleen Patton of IHSA member school Uni High requested the names of all IHSA sponsors and the amount of money they gave. As of last week, she had not received a response.

TO BE CONTINUED …

Durl Kruse requested an appeal and hearing with the U of I's Committee on the Use of Facilities in early January, but Dean of Students Bill Riley informed him that this committee has not existed for a couple of years. The incident has been forwarded to the Chancellor's Office.

We spoke with Larry Mann, executive assistant vice president for academic affairs, on Jan. 29.

“I find it disappointing and discouraging that you were asked to leave,” Mann said of the incident.

While he thought that the U of I policy about fliering needs to be brought to the attention of the campus, he stressed that the University policy's spirit was to encourage the free expression of differing opinions. The problem lay in individuals acting outside of that spirit to make bad calls, but not, he accentuated, malicious calls.

AWARE recently heard back from the Chancellor's Office. Organization members will meet with Chancellor Richard Herman at 4 p.m. on March 20. We hope to have the incident and the policy clarified. This will be important because it will set a precedent for possible future controversies about campus fliering.

RELATED

— Student Press Law Center: Student Press Law Center, Feb. 27, 2007: Local group claims university discouraged distribution of anti-war flyers (sic)

— U of I Student Code: Posting and Distribution of Handout Materials