BREAKING: Attorney Andrew Shubin files civil rights retaliation lawsuit on behalf of female employee against Penn State University.
Attorney Andrew Shubin files civil rights sexual harassment and retaliation law suit on behalf of a female employee against Philipsburg Osceola School District

Osmond 5: Whose Lesson to Learn

In Osmond Balcony Case, All Parties Claim the High Ground

While most agree that the “Osmond Five” case was blown all out of proportion, there is sharp disagreement over who blew it out of proportion, whether this was a “minor” incident, or whether it has chilled the climate of free speech at Penn State University.

“This case being blown out of proportion–that’s the students’ doing,” said Bill Mahon, Director of Penn State’s Office of Public Information. “These kind of cases are almost always settled at the first stage–it’s unheard of for this kind of case to have this lengthy of a hearing. The kinds of violations we’re talking about were minor…somebody being in a building perhaps not authorized to be in, and ignoring an officer’s instructions to move on.”

“I am disgusted that the University would consider the act of taking away my right to free speech a minor incident,” claimed Robyn Stephens, one of the students arrested. “It was easy for them to make a call and silence my opinion by throwing me in jail. But the ethical and legal ramifications of that action are not minor. When the universities of America censor the beliefs and non-violent actions of its students, our country is in a sorry state.”

“Any time you’re talking about an issue that’s driven by the First Amendment, it’s not minor in my view. Constitutional issues are not minor,” according to attorney Andrew Shubin, who represented the students pro bono in their criminal trial for unlawful trespass. “I think the students spoke responsibly, they acted responsibly from the beginning, their constant attempts to have a constructive dialogue with whether it was Judicial Affairs or Graham Spanier, it was all in good faith. The University’s behavior sadly wasn’t.”

“And I think the University really played this all wrong, Shubin continued. “They made tactical mistakes from the beginning by not letting these students simply hang their banner, by trying to anesthetize the campus for the National Governors’ Association. The University seemed to me to forget that this is a campus for students, it’s not necessarily the goal of this campus to entertain dignitaries and show off to corporate America…

“The University knows how to throw a football game; they know how to host alumni, but when they had politicians here, they clearly did not know some of the nuances–they didn’t know how to handle this. They can handle a drunk student screaming obscenities, but a student who is acting responsibly and critically, they had no idea how to handle that, and they were very edgy and snappy, and they moved too quickly without enough kind of deliberation, and made a lot of mistakes,” Shubin said.

Joe Puzycki, Director of Penn State’s Office of Judicial Affairs, said he believes his office acted in good faith, and followed the same procedures it would with any complaint of student misconduct. “There’s been a lot of talk about this case being a First Amendment Case. It’s not about the First Amendment,” he said. “The complaint that came to our office had nothing to do with free speech. And I’m probably one of the strongest supporters… If that was about free speech, I would never have allowed that case to go forward.”

“We don’t have much discretion in whether we’re going to go after something,” Puzycki added. “If we believe a code violation could have occurred, there’s no question, we’ll look into it. Where our discretion comes in is in how we respond to it–what’s our sanction going to be? Are we going to handle it as just an educational moment and give a minor sanction and have a conversation with the student and say ‘just don’t do this again, it just doesn’t make sense,’ or are we going to go after them unfairly? We don’t do that, and I don’t believe we did that in this case.”

“I don’t even see any problems with the police and with the way they acted,” Shubin said, “I don’t see many problems necessarily with the way specific actors within Judicial Affairs acted. I believe that their actions were constrained by the demand of the administrators, whom I believe were the real villains here. And my clients, they had already made it clear to the University after the criminal case was dropped that they could have walked away from it, and there wouldn’t have been any adverse publicity, or the bad faith or the ugly feelings, but they didn’t.”

“I think it was mean-spirited, I really do. I think it was really sad–a very sad and unfortunate decision that at some level it was borne of a kind of dishonest rendering of the facts. And I think it was the wrong thing ethically, legally, morally and academically,” Shubin said.

On July 10, three Penn State Students and two non-students–”the Osmond Five”–were arrested on campus for actions surrounding a protest adjacent to the Hetzel Union Ballroom, where University officials were hosting a social event for visitors from the National Governors Association meeting. All five appeared in Centre County court on criminal charges of unlawful trespass, but the charges were dismissed.

Two weeks after being cleared of criminal charges, the three students, Justin Leto, Robyn Stephens and Michelle Yates, were cited by the University’s Office of Judicial Affairs for two alleged violations of the University’s Code of Conduct: Section 13.01, Unauthorized Entry or Use, and Section 11.03, Failure to Comply. The students opted not to accept the charges at the initial disciplinary meeting with Judicial Affairs, and the case was sent to the next stage, an administrative hearing, in which sanctions could range from disciplinary warning to extended probation. Any sanction beyond that, such as suspension from the University, would require a full board hearing.

Nearly three months after the initial July incident, the administrative hearing with Judicial Affairs was convened. Two sessions, spanning the first two Thursdays in October, featured more than 10 hours of confidential testimony by the students, witnesses, police and University administrators. On October 18, the students released the findings to the public. All three were found responsible for the charge of Unlawful Entry or Use, and Justin Leto was found responsible for the additional charge of Failure to Comply.

According to the hearing chair’s written decision, no sanctions were recommended in light of the “good faith effort on the part of the students to adhere to University policy,” and that “issuing sanctions for this behavior does not serve Penn State’s mission to foster thinking and dialogue.” The report stated that while the chair “might not agree with their explanation justifying their behaviors, nor with their conspiracy theories,” he found the students to be “three young people who are passionate and committed to their causes.”

The report also stated that the students were accustomed to using the “free speech zone” outside Osmond Building, that they were “used to an open forum at Penn State, which was not present during the hours the NGA event was held in the HUB.”

Many of the normal policies students would follow regarding the scheduling of space, such as posting of banners, according to the report, were adjusted to accommodate the NGA, and that the hearing chair believed that the students were making an effort to adhere to the policies. The report also stated that the University did try to accommodate the students’ requests within the framework of the NGA and that the NGA security issues, which PSU did not fully control, seemed to have the greatest effect on this situation.

The report concluded that since students did not have the proper permission forms on file for this particular date, that permission did not exist for them, and hence their use of the balcony was unauthorized. The report did question the University’s initial complaint that students on the balcony presented a safety hazard, stating, “given that students use the balconies to hang banners renders the

University’s issue of the balconies’ safety questionable, at best.”

It was never determined in the hearing, despite numerous inquiries by the students, who gave the orders to move the “free speech zone” from its normal location in front of Osmond Building, or who gave the orders to dispatch Physical Plant to remove their banner.

The verdict was met with mixed responses. “My personal feeling on this decision to find us responsible but not issue sanctions seems to me to be the University’s subtle way of issuing justice while at the same time attempting to save face,” said campus activist Justin Leto. “From the University’s standpoint, it was probably the farthest they could have gone without punishing us and risking further civil action…they didn’t want to have us come away completely innocent–that would have made fools out of a lot of people in Old Main,” he said.

“The judge in our criminal proceedings knew the accused wrongdoing was a joke and our charges were thrown out,” said Robyn Stephens. “Even the University-appointed hearing officer in the Judicial Affairs charges decided there was no reason to punish us for our political beliefs. I have learned from this experience that

“I think it was mean-spirited, I really do. I think it was really sad– borne of a kind of dishonest rendering of the facts. And I think it was the wrong thing ethically, legally, morally and academically.”

– Attorney Andrew Shubin

I am allowed to attend rallies and march all I like, but if the University wants to silence our message they can and will stop us by any means necessary. If that is not an invasion of our civil rights I do not know what is…If my poster had said, ‘I love my governor’ I would not have been arrested.”

Attorney Andrew Shubin claimed victory in the sense that “the University is saying that they (the students) violated the rules, per se, but that their objective was so important that the University is going to tolerate a rule violation. Now of course, we dispute that they violated a rule, as a matter of fact.”

According to Michelle Yates, the third student charged, “The University is sort of saving face by finding us guilty, but then makes them look like the good guy by not sanctioning me. It makes me angry, being a pawn of politics. I still think I’m innocent, not guilty of the charges.”

“Since it’s public, and I’m not violating it in this case,” said Joe Puzycki, “the chair went below the range–and provided a rationale for that, which I think was a very sound rationale. It’s interesting to read the comments in the papers from the statements of the students which brings me back to some of that mistrust, which is, ‘well the University is just trying to get out of a lawsuit by not sanctioning us.’ Again, there was a piece there–looking it from the other perspective, maybe this chair really believed that this was the appropriate sanction, and in an educational process and what occurred, and everything that happened, you’ve gone through enough, hopefully you’ve learned something from the process, and putting you on probation isn’t going to serve any University interest. Hey, that’s good, that works!”

The Contested Process

The Office of Judicial Affairs was crowded with witnesses, faculty advisors and potential observers on the morning of October 5, and the tension was palpable. Students alleged that they had to fight for their rights all throughout the hearing process, even though they believed these rights were guaranteed by University policy governing open hearings. The hearing, which was scheduled to start at 9am finally convened at 10:30am after considerable office disruption and haggling over allowing the hearing to be audio taped and to allow all witnesses and observers into the hearing.

Puzycki noted that this was an administrative hearing, which has no appeal since the range of sanctions does not extend to anything more serious than probation. Full board hearings, for more serious offenses such as rapes, assaults or hate crimes are routinely taped for use in case of an appeal, Puzycki said, because students need the “highest level of due process and formality afforded to them because of the liberty and property interests” if they’re asked to leave the University. “We made that accommodation, because again, we try to err on the side of giving more to the students than less,” Puzycki said.

Open administrative hearings are limited to members of the University community who can produce a University identification card. Attendance was limited to the hearing officer, the three students, their faculty advisors, one faculty observer, one student observer and two media observers with University ID’s. “We don’t have any issue with people coming to open hearings, I think that’s great–we have nothing to hide here,” Puzycki said. “There was this feeling of ‘what are they trying to hide?’ We are not trying to hide anything, but to have 50 people in that hearing room was going to be a huge distraction to the hearing officer. To make a request to move it to a different room was just not appropriate–it just didn’t make sense. It wasn’t one the hearing officer wanted to make, and the request for it shouldn’t have been made at that point. Most people would disagree on that.”

The Contested Testimony

The students maintained that they had exhausted all avenues for obtaining rally space and permission to hang their banner, which read “The People’s Convention: The socially responsible alternative to the Governors’ Convention” with the date of the event July 7-9. They also contend they believed they had a First Amendment right to protest in what had been an approved space, and that this right superceded any University policy.

The charges in the case never varied, and the defense lain out by the students seemed to waver very little. However, it seemed that once the students appeared to disprove one claim against them, the University opposition would switch tactics and address new avenues to show the students had been out of compliance.

Leto, Stephens and Yates maintained that they were first protesting on the Osmond Patio, which had previously been designated as a “free speech zone” by the University, and it was a site which would be readily visible to visiting governors. The students said they were confronted by state police, who claimed they were operating under “University orders,” and told the protesters they must move down the street away from the HUB. They said they were told if they did not move they would be arrested. They asked if they could be allowed to enter the Osmond Building, because this was where they believed they had permission to hang their banner, and that this is where they had told other protesters to meet.

At first, the University had claimed that the students were removed from the balcony because it was unsafe. When it was demonstrated that policy directed students to access the balcony from and Osmond Building window, and that the University would not put students in harm’s way if the balcony were indeed unsafe, this avenue of argument was abandoned.

University witnesses then stated that the Room 201 Osmond was under construction by the Office of Physical Plant, and that the presence of tools and building materials made this area clearly off-limits. The students maintained that there were no signs or hazard tape indicating that access to the room was prohibited. The students added that there were also rooms adjacent to Room 201 not under construction through which balcony access could be gained, and that these doors had been unlocked, and that police could not place any of the students in Room 201, even if it had been properly placarded.

Leto maintained that he had first contacted Events Management in the HUB for banner clearance, and was told that because of the governors’ conference, those requests were being handled by Steven MacCarthy in the Office of University Relations. Leto said he contacted MacCarthy about permission for rally sites and for banner sites in May. He said MacCarthy told him the spaces for banners at the Allen Street gate and the space near Carnegie Building were already reserved for Arts Festival, but the other locations “would be fine,” and Leto considered this “permission.”

Andrew Shubin had tried to verify this verbal permission prior to the criminal trial. “My notes of my conversation I had with Steve McCarthy were submitted as part of the students’ evidence for this case, because I did actually quote him verbatim on a couple of important points,” Shubin said. “One of the things he said that we talked about was that the students had requested a variety of sign spaces, and McCarthy told Justin Leto during this preparatory meeting, when Justin was sent to him that the only problem was with the sign at Allen Street because it was set up for the Arts Festival, and that all the other sign spaces were ‘fine.’ And, the clear impression of what he said to me the day before was he had told the students that they had done everything that they needed to do, and that it was reasonable for them–the students–to conclude that they had been given permission from him to hang the banner at Osmond. That is all very clear, and I felt that he was being very truthful and very candid.”

Leto then complained that Steven MacCarthy had told a completely different version to the Centre Daily Times the evening the students were arrested, and that this was potentially prejudicial to his Student Affairs hearing, and certainly detrimental to Leto’s public credibility. He cited the newspaper article in which MacCarthy had said, “That’s an out-and-out lie…he NEVER contacted my office.”[emphasis added]

MacCarthy, the Assistant Vice President of University Relations said “No that’s not true – as I think it happened … There was a question that was asked of me after the arrest was made. The reporter said, ‘Justin Leto said you gave him permission to be out on that balcony,’ and I disputed it.” MacCarthy said that Leto had come to his office in late May, and had discussed a rally form that would last through the 9th, but that he was arrested on the 10th. “I encouraged him to go back to the HUB,” MacCarthy said, “I called Justin back at least two times to remind him to sign up. So, we did talk about rally locations, primarily about rally sites for the Peoples Convention on Saturday and Sunday, and sign space through Sunday, which was the 9th.”

Leto also noted that his group, Students for Accountability and Reform was not a University group, and that policy AD-51 states that reservations for non-University groups may be arranged through the Office of University Relations, 309 Old Main.

“MacCarthy was the only one able to approve banner space for STAR since we are not a registered student organization. Although not a usual circumstance for unregistered groups to request space, the Osmond banner could ONLY be approved through MacCarthy, not HUB Events Management,” Leto said.

When asked how Physical Plant came to take the banner down in the first place, MacCarthy said, “This was the third time it was taken down – Physical plant took it down before. Students put it up and it was taken down Wednesday or Thursday–both times it was taken down by Physical Plant, because they didn’t have permission to use that space–there is a master calendar in the HUB, and Physical Plant had gone up to take it down.”

When asked how the students regained possession of the banner if Physical Plant had taken it down, MacCarthy responded, “It was just a sheet with some spraypaint scrawled on it–they may have just made a new one…That was the third time that that group had had a banner taken down that week. I know that it had been removed–people in the HUB ordered to get the banner down.”

The students said there had only ever been one banner, and that they had never made a duplicate. They said they also found it odd that Physical Plant would appear at 5:30, after administrative offices had closed, and just prior to the governors’ arrival to remove this one banner while leaving all other banners alone.

Robyn Stephens noted that Betsy Boyer with HUB Events Management already admitted that they do not normally get involved with removing banners, and that the banners usually just sit there past their approved time until the next group takes it down to put up a new banner. “It is funny that MacCarthy would know quite well the entire history of the banner and its placement, but not who ordered it down,” Stephens said.

“That was part of their strategy,” observed attorney Andrew Shubin, “when it comes to the weak part of their case, they just tried to muddy the waters and pass the buck. I think at some level there was just rote dishonesty here. When you peel the layers of the onion back, at its core you’re gonna find that there was some bad faith and dishonesty. And it all started with a simple human mistake — I kind of get a sense that it did, but things got out of control pretty damn quick. And the University did nothing in terms of reigning, in terms of trying to get it back under control, stepping up to the plate and taking responsibility for the mistakes the administrators had made–and they had plenty of opportunities to do that.”

The Contested Climate

“The climate or sort of cloud on campus about Judicial Affairs, who is ‘partnering with the University’ to ‘get’ these students–it’s probably the most upsetting and insulting piece for me personally,” said Joe Puzycki. “You never stay in this work if you take it personally, and I’m not taking it personally–you let it go. But, it tells you something about the climate. If people truly believe, or if students truly believe that this is how a place operates, then we need to have more dialogue,” he said.

When asked whether the “paranoid” student perception of the climate on campus was a result of the climate itself or students’ reading of that climate, Puzycki replied, “Maybe a little of both. I get worried when administrators or faculty members think that we have all the right answers–because we don’t!”

“Even tenured professors are worried about standing up to the U, and saying what they think,” said Michelle Yates, “if tenured faculty won’t, then who are the role models for the rest of the University?”

One faculty member, who preferred to remain anonymous, said, “This all smacks of Stalinist tactics and a kangaroo court,” and that the students appear to be guilty until proven innocent. “There were no clear lines of authority, no responsibility for charges, and no accountability, except for the external civil system,” the faculty member continued, “in this particular case there appears to be double jeopardy and post-hoc punitive actions with no legitimate legal bases for the charges…no one would take responsibility for the initial arrest charges nor the trumped up Judicial Affairs code.”

“This is not the type of thing the University administration talks about ,” said Steven MacCarthy. “The Judicial Affairs process operates independently — it deals with students in a fair way in enforcing the student code of conduct. It’s not like there’s a secret meeting of administrators that occurs, and we say ‘OK, handle that one and do not do that one.’”

“There was a lot of faculty support behind the scenes,” Shubin said. “I got the real sense, that a lot of the faculty was scared to get involved–that they felt that the University would use its power to retaliate against them, whether subtly or directly. I know that there was a lot of empathy for these students. I heard on several occasions things along the lines of ‘When I was in college, we did this all the time, and there was never a problem with it and it was part of the fabric of life on a healthy campus.”

“Student activism is encouraged,” Bill Mahon said, “It’s important – of all places, at the University. I think we had a great deal of people that evening who protested throughout the evening–some much closer to the NGA than those hanging outside the balcony at Osmond. Somehow this represents concerns that protests have not been allowed, but those other protests were not stopped, and with every additional protest, it became less and less credible a statement. The fact that we have so many protests and rallies and opportunities to speak out at Penn State is the strongest evidence that those people are wrong.”

Robyn Stephens disagreed. “Once the criminal charges were thrown out of court,” she said, “the University needed to justify our arrest, so they charged us through Judicial Affairs. This strategy worked really well to blur the issue. Every time I talked to the CDT or Collegian they wanted to know if I had permission to be on the balcony of Osmond…But that is not the issue! We wanted hold signs on the sidewalk of Osmond across from where the Governors were entering the HUB. When we arrived, we were ambushed by police and herded into the building where we then held the protest. Someone at the university ordered the police to take away our right to free speech.”

“It has really enlightened me to a lot of bad politics,” said Michelle Yates, “On the whole, I still think that Penn State is a pretty decent university, but how I feel about the administration, and how it’s run– I’ve seen a lot of what goes on inside the administration – I just don’t know what else to say, it just sucks.”

“I don’t know if it’s paranoia–I mean, part of it’s great,” said Joe Puzycki. “I love student activism, I really do. I think part of me is saying ‘Hey, it’s about time! This place has been dull for a long time!’ but the other piece comes down to ‘wait a minute here, this isn’t the Third Reich here, what’s goin’ on?’ We’re being square with you– and this mistrust is so strong, at least it was exhibited to me as being pretty strong–it surprised me…There is a piece of me that thought, ‘hey, this is great–the students have cause, and they’re out there protesting the governors’ conference, and believe it or not, I was glad to see that there was some activism back on campus. But, you have a job to do, and you have to separate your other stuff and leave it behind while you’re doing your job–but nobody believed that.”

“I think my advisor said it best,” Justin Leto offered, “that this is a major event that the University has been trying to suppress as a minor event. It’s quite the opposite of what Bill Mahon said. That’s the way they’d like to think, this is the way that they’ve been handling various issues, not just this issue, but issues that are critical or paint the University in not so perfect a light. The University engages in this public relations campaign that’s damage control like watching someone work for a political candidate, and it’s something that irks me to think that this is how our University is being run.”

“And I think that that event was certainly major for the students,” Leto continiued, “And it was certainly major for the climate of the campus and the progress of where we are as a University–it was a major event that came back to haunt students, and the students are now wary, they’re scared, they’re worried, they’re not expressing their ideas, and it’s had a chilling effect on what would have otherwise been an active year. We continue to push the envelope–and we do that because we’re not sure how many rights we have left.”

“This gets back to the civility piece on campus,” Puzycki said, “because you need to question. You need to raise hard questions in administrators’ faces, but there’s a way to do that respectfully.”

By John Dickinson