WATCHING ADAMS COMMENTARY – 11/24/15
“People willing to trade their freedom for temporary security deserve neither and will lose both.” – Ben Franklin
No matter how much President Beverlee McClure ups the ante in her claims regarding the threat of having Mr. Danny Ledonne roam free on Adams State University property, the biggest threat to ASU is McClure’s own decisions in this matter. Each time she accentuates the need for banning Ledonne on 10/14/2015, McClure digs a deeper hole, a hole that becomes more risky and costly for ASU. Issuing the persona non grata notice (PNG) against Ledonne before the new PNG policy was even approved was overly hasty, but the biggest mistake in this incredibly flawed series of decisions was denying Ledonne due process.
Due process, according to the 14th Amendment (1868) to the U.S. Constitution, “requires prior to imposition of the disciplinary action adequate notice of the charges, reasonable opportunity to prepare to meet the charges, an orderly administrative hearing adapted to the nature of the case, and a fair and impartial decision” (Watson v. CU, 1973). McClure’s issuance of the PNG denied Ledonne of all four of these, thus violating his Constitutional rights. It’s as if a police officer walked up to you on the street, arrested you, threw you in jail, and then you were denied the right to know the charges, a chance to prepare for a trial, and the trial itself. It is a situation that is impossible to fight – and designed as such.
In Watson v. Board of Regents of University of Colorado, the Colorado State Supreme Court ruled in favor of Watson in a case that is eerily similar to Ledonne’s. The president’s letters banning Watson and Ledonne are very similar. The violations of due process are nearly identical. The objections raised by Watson and Ledonne are similar: violation of Constitutional Rights – 1st and more importantly 14th Amendments. And it certainly looks like the outcomes will be similar: CU lost and the prognosis for ASU looks worse. Legally, the four ways in which the cases differ most significantly are all bad news for ASU. Let’s examine them in chronological order, which probably matches order of seriousness from least to most damning for ASU.
First, CU had a regulation claiming their right to “exclude those deemed detrimental to its well-being.” In contrast, McClure hastily introduced an incomplete (required sections were left blank) and poorly written policy, which comically stated that violators “may be arrested by a Fort Lewis College Police Officer for trespass.” Yes, that’s right – Fort Lewis! In spite of its obvious flaws and failure to be passed, McClure issued the PNG against Ledonne the very next day. A slightly modified version (they deemed it impractical to have Fort Lewis police drive all the way over to Alamosa when the ASU police force has four brand new shiny cars) was still deemed to be inadequate at a second reading at the 11/9 Cabinet meeting, 26 days after the PNG had been issued against Ledonne.
Second, CU’s letter to Watson included very specific “notice of the charges,” including being a felon and threatening a Dean at his home. ASU’s letter included nothing of the sort, just a vague statement about “alleged behavior … deemed to be detrimental to the well-being of the institution and/or incompatible with the function of the University.” That statement should leave readers confused and/or concerned, as it did Ledonne. Thus, CU met one of Watson’s rights that ASU failed to provide Ledonne; ASU’s violations of Ledonne’s rights were worse.
Third, Watson was a convicted felon prior to the conflict. Moreover, he and his friends twice threatened a Dean at his home during the conflict – an actual crime for which he was arrested and charged. ASU has no such cause against Ledonne. ASU Police Chief Grohowski, in his 10/28 campus-wide email wrote, “Ledonne’s behavior has not yet breached the realm of violation of our laws…” Thus, ASU is on weak ground legally.
Fourth, CU released no libelous statements against Watson; they did not sink to defamation of character. In contrast, President McClure and Chief Grohowski have both implied Ledonne is a threat of being a school shooter because he created a video game about Columbine. Stunningly, McClure in an 11/7 interview with the Valley Courier referred to “the personal attacks and the terrorism against me and the previous president and individuals on campus…” Terrorism is a federal crime, one for which Ledonne has never been arrested, much less charged or convicted. Thus, McClure and Grohowski have endangered ASU with potential for a serious defamation lawsuit.
Digging deeper into Beverlee’s Bluff, McClure lied or at least misrepresented the truth at the 11/18 Faculty Senate meeting, by claiming that Ledonne is on a “Colorado State Police watch list” that doesn’t exist. Unfortunately for McClure, facts can be checked; neither the Colorado State Patrol, Alamosa PD, nor Colorado Department of Public Safety maintain any “watch list.” A search with the National Crime Information Center and National Counterterrorism Center turned up no results for Ledonne, nor is Ledonne on the TSA’s “No-Fly List.”
Similarly, McClure confidently waved a thick “Ledonne folder” full of “evidence.” However, astute observers noticed that when she read a passage from the Watson case, she pulled it from that very file. Who knows what else is in there? We might expect a thick stack of emails between McClure, other administrators, and the Attorney General’s office. Or her list of meetings and notes for the week.
Watson won against CU. CU’s issuance of his PNG status was deemed unconstitutional by the Colorado State Supreme Court.
Nonetheless, McClure first claimed that the Watson case didn’t apply to citizens (non-student, non-employees). She can say what she wants – and she does seem to say whatever is convenient – but she is wrong. That public institutions are open to the public and citizens are entitled to due process is precisely the point of the Watson case, as well as prior and recent cases.
President McClure’s next attempt to save face was to fall back on a provision mentioned in the Watson case: “We should say, however, that when a genuine emergency appears to exist and it is impractical for University officials to grant a prior hearing, the right of non-students access to the University may be suspended without a prior hearing, so long as a hearing is thereafter provided with reasonable promptness.” At the 11/18 Faculty Senate meeting, McClure read this statement in response to objections about due process. However, returning to point #3 above, in spite of Watson’s criminal record and criminal behavior during the conflict, the Colorado Supreme Court deemed these insufficient to invoke the “emergency clause.” Ledonne has done nothing of the sort, as now acknowledged by Grohowski. So, if McClure thinks this is the key to saving face and avoiding a lawsuit, she really is playing chicken with an oncoming train, strutting about as if to scare the train off the tracks.
When a faculty member raised this point at the Faculty Senate meeting, McClure and other supporters raised the Columbine shooting as a defense. In this post-9/11, post-Columbine environment, surely the 14th Amendment has been suspended – or so they believe.
Unfortunately for McClure and ASU, this hasn’t been the case. In Lankheim v. Florida Atlantic University (FAU; 2008), the Fourth District Court of Appeal (Florida) ruled in favor of Lankheim, in spite of the fact that FAU raised the issue of the increasing number of school shootings, Lankheim had been hospitalized for a mental disorder, had been subject to a prior PNG due to threatening behavior, and had been convicted of three misdemeanor counts of trespass. In comparison to Watson and Lankheim, Ledonne has been a model citizen of Alamosa and ASU. More problematic for ASU, the Watson case from our home state of Colorado was cited as still relevant and precedent-setting in the 2008 Florida case. Apparently state Supreme Courts haven’t been as willing to disregard the 14th Amendment as McClure and ASU Administration.
By President McClure’s own account, ASU Administration has been wasting something like 150 hours per week, and who knows how much money, over their poor decision to issue a PNG without following due process to someone who has violated no law by their own admission (due process likely would have prevented Ledonne from being banned in the first place). Theirs is a decision for which all of ASU – students, staff, and faculty have been paying. And these costs will continue to grow, possibly drastically, as long as they sustain Beverlee’s Bluff and refuse to recognize that they were the ones who violated the law.