Decision to refer the current flag policy back to a small working group for refinement and clarification.
Dear Members of the UMass Dartmouth Campus Community,
On November 18th I shared with the campus community a new "flag policy" that UMass Dartmouth adopted after extensive consultation and research, and vetting by the Cabinet. For those who wish to review the policy again, it can be found at: Facilities Operations and Construction Flag Policy.
The policy provided a process by which requests by campus organizations and departments to fly flags in support of University values could be reviewed and, if appropriate, approved. Approved requests would provide a five-day display period for such flags. The first request received under this new policy was from the UMass Dartmouth Council on Diversity and Inclusion advocating for the Black Lives Matter (BLM) flag. As I announced to the campus on December 12th, 2016, this request was approved; and the BLM flag flew from that morning through early afternoon on Friday, December 16th in accordance with our policy.[1] Reaction from the campus community was generally positive, though there was some political pushback on local talk radio.
From late December through early February, I received letters from a number of campus groups and departments urging me to approve flying the BLM flag "indefinitely or until Black lives matter." I sought advice on these requests from both the flag advisory committee and the Cabinet and Deans group. These discussions identified several areas of ambiguity in the new flag policy:
First, the provision that "Special circumstance may be considered for requests to fly flags longer than five days" is too vague. It does not give any hint of what might qualify as a "special circumstance" or how much longer a flag might fly, or who should do the considering. Neither the advisory committee nor the Cabinet and Deans had a recommendation as to how these questions might be answered.
The second ambiguity involves the provision: "University-sanctioned organizations may request that a flag of symbolism, representing the values of the University, be flown for a maximum of five days underneath the University flag." The policy is not explicit as to whether the five-day parameter is to be applied on the basis of the particular flag or the particular organization. In other words, could many different organizations each claim a different five-day period to fly the same flag? Furthermore, how often could such a request be made? Once per semester? Once per academic year? Once every four years? The advisory committee and the Cabinet and Deans did not provide unanimous advice on these questions either, although the preponderance of opinion was that the five-day parameter applies to specific flags and should be limited to once per academic year.
In the meantime, a further concern was raised by some faculty members who cited legal precedents that might preclude the University, as a public institution, from flying any flag other than those mandated by state and federal law. Neither the advisory committee nor the Cabinet and Deans felt qualified to resolve this question, but advised that I defer further discussion until the Office of the University General Counsel could research this issue and provide an informed opinion on the legality of our flying "flags of symbolism."
Within the past several days, I shared with the Cabinet and Deans a legal memorandum prepared by Brian Burke, Senior Counsel for the University of Amherst and a member of the UMass General Counsel's staff. Mr. Burke was kind enough to meet with the Cabinet and Deans earlier this week to discuss the issues involved, including an extensive Q&A period.
The legal questions are complicated, but I will provide a brief and (I hope) clear summary of how they pertain to our flag policy.
- The University has, for many years, had a Public Forum Policy designating a space in the central quadrangle for public assembly and speech; as long as such activities do not violate laws or jeopardize the safety of the community, the University does not restrict speech on the basis of its content in this area. This area is open not only to all students, faculty, and staff, but to the general public as well.
- The flagpoles at the entrance to our campus have never been designated as a "public forum" but have traditionally been reserved for University speech - i.e. speech that the University itself chooses to make. This is legal, as long as the University does not utilize the "non-forum" of its flagpoles for inappropriate speech (e.g. religious or partisan political speech). The quarter-century tradition of flying the Rainbow Flag as a University endorsement of the value of diversity does not change the status of the flagpoles as non-forums.
- The campus flag policy, despite its ambiguities and shortcomings, does not redefine the flagpoles as public forums.
- The institution has broad latitude in deciding what kind of "University speech" it chooses to disseminate. Under current principles of UMass System governance, the ultimate responsibility for such decisions rests with the Chancellor.
At the conclusion of the Cabinet and Deans discussion earlier this week, I decided to refer the current flag policy back to a small working group for refinement and clarification. Specifically, the revised policy should:
- Clarify the "non-forum" nature of the campus flagpoles;
- Clarify the "University values" that flags should support (these values are specified in the UMassDTransform2020 strategic plan, and were approved by the Faculty Senate and SGA);
- Clarify that the flag committee is advisory to the Chancellor, who is ultimately responsible for deciding what flags may be flown (in fact, the Chancellor may seek advice from any source s/he wishes);
- Clarify the ambiguity of the "special circumstances" in which a flag might be flown for more than five days;
- Clarify the ambiguity of the five-day period provision - specifically whether it implies one five-day period per year, per semester, or otherwise.
I have agreed to bring a revised draft of the policy back to the Cabinet and Deans for further discussion and, I sincerely hope, final resolution before the end of the semester.
[1] To be precise, the flag was lowered prior to close of business on Friday 12/16 because the staff person responsible for doing finished his shift earlier in the afternoon.
Sincerely,
Randy Helm
Interim Chancellor