William and Mary President Fired for Free Speech

I don't really keep up with William and Mary goings-on that much, but I heard the new President was fired and read his letter, and am absolutely apalled at the Board of Governors. I had no idea this Nichols guy was so cool. He really took some stands on free expression and separation of church and state. But, out with the new, in with the old. I guess they'll have another decade with the likes of Timothy Sullivan in control, and Henry Kissinger symbolism. Bummer.

Here's his amazing goodbye letter..

"Dear Members of the William & Mary Community: I was informed by the Rector on Sunday, after our Charter Day celebrations, that my contract will not be renewed in July. Appropriately, serving the College in the wake of such a decision is beyond my imagining. Accordingly, I have advised the Rector, and announce today, effective immediately, my resignation as president of the College of William & Mary. I return to the faculty of the school of law to resume teaching and writing.

I have made four decisions, or sets of decisions, during my tenure that have stirred ample controversy. First, as is widely known, I altered the way a Christian cross was displayed in a public facility, on a public university campus, in a chapel used regularly for secular College events -- both voluntary and mandatory -- in order to help Jewish, Muslim, Hindu, and other religious minorities feel more meaningfully included as members of our broad community. The decision was likely required by any effective notion of separation of church and state. And it was certainly motivated by the desire to extend the College's welcome more generously to all. We are charged, as state actors, to respect and accommodate all religions, and to endorse none. The decision did no more.

Second, I have refused, now on two occasions, to ban from the campus a program funded by our student-fee-based, and student-governed, speaker series. To stop the production because I found it offensive, or unappealing, would have violated both the First Amendment and the traditions of openness and inquiry that sustain great universities. It would have been a knowing, intentional denial of the constitutional rights of our students. It is perhaps worth recalling that my very first act as president of the College was to swear on oath not to do so.

Third, in my early months here, recognizing that we likely had fewer poor, or Pell eligible, students than any public university in America, and that our record was getting worse, I introduced an aggressive Gateway scholarship program for Virginians demonstrating the strongest financial need. Under its terms, resident students from families earning $40,000 a year or less have 100% of their need met, without loans. Gateway has increased our Pell eligible students by 20% in the past two years.

Fourth, from the outset of my presidency, I have made it clear that if the College is to reach its aspirations of leadership, it is essential that it become a more diverse, less homogeneous institution. In the past two and half years we have proceeded, with surprising success, to assure that is so. Our last two entering classes have been, by good measure, the most diverse in the College's history. We have, in the past two and a half years, more than doubled our number of faculty members of color. And we have more effectively integrated the administrative leadership of William & Mary. It is no longer the case, as it was when I arrived, that we could host a leadership retreat inviting the 35 senior administrators of the College and see, around the table, no persons of color.

As the result of these decisions, the last sixteen months have been challenging ones for me and my family. A committed, relentless, frequently untruthful and vicious campaign -- on the internet and in the press -- has been waged against me, my wife and my daughters. It has been joined, occasionally, by members of the Virginia House of Delegates -- including last week's steps by the Privileges and Elections Committee to effectively threaten Board appointees if I were not fired over decisions concerning the Wren Cross and the Sex Workers' Art Show. That campaign has now been rendered successful. And those same voices will no doubt claim victory today.

It is fair to say that, over the course of the past year, I have, more than once, considered either resigning my post or abandoning the positions I have taken on these matters -- which I believe crucial to the College's future. But as I did so, I thought of other persons as well.

I thought of those students, staff, faculty, and alumni, not of the religious majority, who have told me of the power of even small steps, like the decision over display of the Wren Cross, to recognize that they, too, are full members of this inspiring community.

I have thought of those students, faculty, and staff who, in the past three years, have joined us with explicit hopes and assurances that the College could become more effectively opened to those of different races, backgrounds, and economic circumstances -- and I have thought of my own unwillingness to voluntarily abandon their efforts, and their prospects, in mid-stream.

I have thought of faculty and staff members here who have, for decades, believed that the College has, unlike many of its competitors, failed to place the challenge of becoming an effectively diverse institution center stage -- and who, as a result, have been strongly encouraged by the progress of the last two years.

I have thought of the students who define and personify the College's belief in community, in service, in openness, in idealism -- those who make William & Mary a unique repository of the American promise. And I have believed it unworthy, regardless of burden, to break our bonds of partnership.

And I have thought, perhaps most acutely, of my wife and three remarkable daughters. I've believed it vital to understand, with them, that though defeat may at times come, it is crucial not to surrender to the loud and the vitriolic and the angry -- just because they are loud and vitriolic and angry. Recalling the old Methodist hymn that commands us "not to be afraid to defend the weak because of the anger of the strong," nor "afraid to defend the poor because of the anger of the rich." So I have sought not to yield. The Board's decision, of course, changes that.

To my faculty colleagues, who have here created a distinctive culture of engaged, student-centered teaching and research, I will remember your strong and steadfast support until the end of my days.

To those staff members and alumni of this accomplished and heartening community, who have struggled to make the William & Mary of the future worthy of its distinctive past, I regret that I will no longer be part of that uplifting cause. But I have little doubt where the course of history lies.

And, finally, to the life-changing and soul-inspiring students of the College, the largest surprise of my professional life, those who have created in me a surpassing faith not only in an institution, but in a generation, I have not words to touch my affections. My belief in your promise has been the central and defining focus of my presidency. The too-quick ending of our work together is among the most profound and wrenching disappointments in my life. Your support, particularly of the past few weeks and days, will remain the strongest balm I've known. I am confident of the triumphs and contributions the future holds for women and men of such power and commitment.

I add only that, on Sunday, the Board of Visitors offered both my wife and me substantial economic incentives if we would agree "not to characterize [the non-renewal decision] as based on ideological grounds" or make any other statement about my departure without their approval. Some members may have intended this as a gesture of generosity to ease my transition. But the stipulation of censorship made it seem like something else entirely. We, of course, rejected the offer. It would have required that I make statements I believe to be untrue and that I believe most would find non-credible. I've said before that the values of the College are not for sale. Neither are ours." (My emphasis: The Board of Visitors offered him hush money?! Unacceptable.) "

Mine, to be sure, has not been a perfect presidency. I have sometimes moved too swiftly, and perhaps paid insufficient attention to the processes and practices of a strong and complex university. A wiser leader would likely have done otherwise. But I have believed, and attempted to explain, from even before my arrival on the campus, that an emboldened future for the College of William & Mary requires wider horizons, more fully opened doors, a broader membership, and a more engaging clash of perspectives than the sometimes narrowed gauges of the past have allowed. I step down today believing it still.

I have also hoped that this noble College might one day claim not only Thomas Jefferson's pedigree, but his political philosophy as well. It was Jefferson who argued for a "wall of separation between church and state" -- putting all religious sects "on an equal footing." He expressly rejected the claim that speech should be suppressed because "it might influence others to do evil," insisting instead that "we have nothing to fear from the demoralizing reasonings of some if others are left free to demonstrate their errors." And he averred powerfully that "worth and genius" should "be sought from every condition" of society.

The College of William & Mary is a singular place of invention, rigor, commitment, character, and heart. I have been proud that even in a short term we have engaged a marvelous new Chancellor, successfully concluded a hugely-promising capital campaign, secured surprising support for a cutting-edge school of education and other essential physical facilities, seen the most vibrant applicant pools in our history, fostered path-breaking achievements in undergraduate research, more potently internationalized our programs and opportunities, led the nation in an explosion of civic engagement, invigorated the fruitful marriage of athletics and academics, lifted the salaries of our lowest-paid employees, and even hosted a queen. None of this compares, though, to the magic and the inspiration of the people -- young and older -- who Glenn and I have come to know here. You will remain always and forever at the center of our hearts.

Go Tribe. And hark upon the gale.

Gene Nichol"

The Fourth Amendment Gone Wild: Part II - Seizures

Imagine you're taking a Greyhound bus. You board in Miami, and the first stop is Fort Lauderdale. You're sitting on the bus, minding your own business-- too early for a bathroom break. At that stop, two police officers board the bus. The two officers approach you, and ask for your identification. They have guns in their holsters. They block the only exit from the bus. The bus is filled with passengers gawking at the scene. When you show them your ID, they ask to search your bags. Still, there's no way out. Would you feel free to leave? To stand up and say "excuse me" as you try to slide by the armed cops in the narrow aisle? Would you feel that you had the power to end the interaction? That you could say "no thank you," and that would be that?

This was the factual backdrop leading to the definitive case on Fourth Amendment "seizures": Florida v. Bostick, 501 U.S. 429 (1991). Justice O'Connor wrote the majority opinion, defining "seizure," for purposes of the Fourth Amendment, as any situation where a "reasonable person" would not feel free to "disregard the police and go about her business." Not a bad definition, really. I would tend to agree. Of course, when confronted by officers, there are very few situations where I would feel free to disregard the police, but surely that's what the Court intended. Surely, the Court knew that refusing a breathalyzer is a crime in most states, that refusing to provide identification is a crime, and that refusing any request can be construed as resisting arrest. I suppose I can disregard an officer when cross-examining him in open court (a truly transcendental experience), but that's about it. Given the confrontational nature of most any police encounter, surely the court used the adjective "reasonable" to broadly construe "seizures", thereby ensuring that each such confrontation is supported by a warrant and probable cause, right?

Wrong. The Court held that the interaction described above was consensual, and thus not a "seizure." Apparently, its reasonable to refuse to consent to two armed officers wishing to search your bags on a Greyhound bus. This exact scenario was reaffirmed in U.S. v. Drayton, 536 U.S. 194 (2002). Apparently, its reasonable to refuse to answer an officer's questions in an airport. INS v. Delgado, 466 U.S. 210 (1984). Apparently, its even reasonable to run from the police, inasmuch as there is no "seizure" if you do so. California v. Hodari D., 499 U.S. 621 (1991). But guess what? Your running gives the police reasonable suspicion to seize you. Its "reasonable" to run, just don't get caught. In sum, when you cooperate, the interaction is consensual, even though you don't have a choice, since when you do not cooperate your uncooperativeness gives the police sufficient justification to "search" and "seize" you without consent. Is your head spinning yet?

Perhaps many of us would resist the cops in this situation. I'd imagine we're an assertive bunch when it comes to our rights. But what about those people who aren't liberal rabble-rousers like you and me? What about an immigrant who doesn't speak English? What about an African-American who's been bullied by cops his whole life? What about someone with a criminal record? Would those persons feel free to end the interaction? According to Justice O'Connor they should.I like to think I'm reasonable.

Personally, when dealing with cops, my primary goal is to get everything over with as soon as possible. Apparently, however, I'm way off-base. Henceforth, when dealing with cops, I should pretend I'm a Supreme Court Justice. When looking at a police interaction from that perspective, its easy to see how unreasonable it would be to even have to speak to some pedestrian LEO. Because certainly, a Supreme Court Justice would feel free to indignantly refuse to cooperate with two armed officers when cornered in a Greyhound bus. In fact, I'm sure Justice O'Connor has ridden greyhound busses countless times in the past thirty years. I would imagine Justice Rehnquist was often harassed by the cops as he walked the mean streets surrounding his Annandale, Virginia home. Each of the Justices undoubtedly have impeccable street smarts when it comes to dealing with suspicious, menacing, armed police officers. And thankfully for all of us, they've deigned to share. So the next time an officer confronts me, I'll brush him off with the gentle admonition "please, no autographs." If the cop persists, I'll explain that I make the law, and could easily have him fired. If he continues to harass me, I'll call the Secret Service. Since this would be the reasonable course of action for Bill, Sandy, and the gang, the officers' behavior would not amount to a seizure.

Of course, nothing could be so simple as "reasonableness" in the bizarro-land of the Fourth Amendment. If you'll recall, "reasonable" is the operative word for "searches" as well. An investigative technique is a "search" when it invades a "reasonable" expectation of privacy. In that context, "reasonableness" is actually the product of a peculiar formula involving political preferences, police convenience, the Drug War, and the F.A.A.'s minimum elevation requirements. What could be more reasonable?

So, now you know what has been defined out of the Fourth Amendment: Investigative techniques that do not invade a "reasonable" expectation of privacy, (very few expectations being reasonable, even before the Bush Administration), and police interactions that one might "reasonably" feel free to terminate (apparently, most of them). The Fourth Amendment covers whatever is left. These residual police activities, (i.e. "searches" and "seizures"), must be supported by a warrant and probable cause. Except when they don't have to be. Which is most of the time. But that's another post.

My Super Tuesday Projections

Let's test my political acumen. Most likely, my stunningly accurate predictions in 06 were a fluke! Here, I'm even more emotionally involved, which undoubtedly colors my predictions and clogs my logic, so I've (somewhat arbitrarily) toned down my predictions. My assumption is that Hillary will outdo the polls in the Northeastern states except for in New York, will eke out wins in California and Missouri, and blow Obama out in Tennessee, Arkansas, and New York. Obama will barely win Delaware, Alabama, and Kansas, blow Hillary out in Georgia and Illinois, and win solidly in most of the caucus states.

As for how this will pan out in terms of delegates, I don't have the patience to do the math. Let's make a rough guess that Hillary is up by about 35 delegates on Wednesday morning.

Illinois: Obama, 62% - 31%

Georgia : Obama, 59% - 34%

Alaska: Obama, 53% - 41%

Idaho: Obama, 52% - 41%

North Dakota: Obama, 52% - 43%

Utah: Obama, 52% - 42%

Kansas: Obama, 50% - 46%

Colorado: Obama, 51% - 45%

Alabama: Obama, 49% - 47%

Delaware: Obama, 47% - 46%

California: Clinton, 47.5% - 47%

Missouri: Clinton, 48% - 46%

Minnesota: Clinton, 48% - 45%

Connecticut: Clinton, 49% - 45%

New Mexico: Clinton, 49% - 44%

Arizona: Clinton, 51% - 42%

New Jersey: Clinton, 51% - 42%

Massachusetts: Clinton, 52% - 42%

Oklahoma: Clinton, 52% - 41%

New York: Clinton, 54% - 40%

Tennessee: Clinton, 56% - 39%

Arkansas: Clinton, 58% - 36%