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It’s Halloween time again, and just as predictably as costume stores have expanded their line of “sexy” costumes (, anyone? Or perhaps a ?), college administrators have begun wringing their hands over the possibility that someone on campus will wear a costume that offends someone else. In recent days, news outlets have reported that both the  and the  have sent campus wide emails cautioning their student bodies against wearing insensitive costumes.

One could argue that these emails reflect the kind of paternalism that underlies a lot of the censorship on college campuses nowadays, but the emails do not—in and of themselves—violate students’ expressive rights. Universities are free to encourage students to adopt certain values or to conform their expression to certain norms, so long as they do not cross the line into requiring students to do so. But because so many universities do cross that line, it is worth preemptively reminding these and other institutions that they cannot take disciplinary action against a student or group of students simply for wearing an offensive costume or hosting an insensitively themed party.

In 2010, Syracuse University administrators sent out a similar email to the student body there, asking them to “please consider how your portrayal of ethnicity and race, gender, class, religion, culture, sexual orientation, or disability might affect others.” While that request seemed innocuous enough, an article several days later in the university’s student newspaper revealed that the university’s request, while phrased in aspirational terms, was actually anything but. In that article, Department of Public Safety Chief Anthony Callisto stated:

“If we detect that there's a person with an offensive costume, we'd likely require them to remove it, and we would file a judicial complaint,” Callisto said. “There are costumes that could be very offensive to members of protected class communities.” [Emphasis added.]

This is precisely what cannot happen at institutions like the University of Minnesota and the University of Colorado. While those universities may indeed exercise their own free speech rights to advocate for inoffensive costumes, students and administrators there must understand that the university may not take adverse action against students who choose to disregard its advice.

Part of the problem here is that so many universities, including both the University of Colorado and the University of Minnesota, maintain vague and overbroad “bias” policies under which the wearing of an offensive costume could easily constitute a bias incident.

At the University of Colorado, a “bias motivated incident”  as “behavior that is motivated by bias based on perceived race, religion, ethnicity, national origin, gender, gender identity, disability, age or sexual orientation and has a negative impact.” And more specifically, “[c]omments or actions that are degrading or devaluing may be considered to be bias incidents.”

And at the University of Minnesota - Twin Cities, “bias incidents” are “[e]xpressions of disrespectful bias, hate, harassment or hostility against an individual or group ... .” The policy states that “[e]xpressions vary, and can be in the form of language, words, signs, symbols, threats, or actions that could potentially cause alarm, anger, fear, or resentment in others, or that endanger the health, safety, and welfare of a member(s) of the University community, even when presented as a joke” (emphases added).

Now, neither of these policies explicitly states that students will be punished for committing bias incidents. Rather, they provide a mechanism for students to report such incidents to the university for investigation. But as FIREhas said on countless occasions, when the only conduct at issue is protected expression, there is nothing to investigate. And the threat of investigation—particularly when coupled with an official university “advisory” against insensitive costumes—is almost certainly sufficient to have a powerful chilling effect on student expression. This is why FIREalways argues that policies explicitly implicating protected speech, even when not directly tied to a threat of disciplinary action, are troublesome from a free speech standpoint.

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