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Party Poopers: University Administrators Chill Speech by Investigating Campus Gatherings
Earlier this month, University of California, Los Angeles (UCLA) administrators a campus for hosting before even completing an investigation into allegations that some attendees wore blackface.
While that any student wore blackface has been found (several students , with soot-smudged cheeks and pans of gold in an dual reference to Kanye West鈥檚 song, 鈥淕old Digger鈥 and the gold rush of 1849), that鈥檚 beside the point: The First Amendment protects even overtly racist expression. Given that there don鈥檛 seem to be any allegations that students were engaged in anything but protected expression, there is no justification even for an investigation, let alone punishment like the suspensions leveled at this fraternity and sorority.
At UCLA, the driving force behind the university inquiry was calls from other students who, , swarmed the chancellor鈥檚 office 鈥渄emanding a response鈥 from the school, and holding signs that read 鈥淥ur culture is not a costume.鈥
The Atlantic鈥檚 Conor Friedersdorf last week for 鈥渟quander[ing] their inheritance鈥 from the student-led , which made freedom of speech a more prominent issue on the nation鈥檚 college campuses.
But Friedersdorf puts most of the onus on the university administration, which he (accurately) alleges should know better:
[U]niversity officials are abusing their authority merely by investigating protected speech in the first place. And the student newspaper is cheering them on, in an editorial that the office of UCLA Fraternity and Sorority Relations take a more active role in preemptively clearing all party themes.
UCLA law professor Eugene Volokh, one of America鈥檚 foremost First Amendment scholars, has published several Washington Post items explaining why these reactions are legally dubious. 鈥淭he suspension of the fraternity and sorority is likely unconstitutional,鈥 he . 鈥淐ostumes that convey a message are treated as speech for First Amendment purposes (see, e.g., and Cohen v. California (1971)). And a university may not punish speech based on its allegedly racist content; see, e.g., Rosenberger v. Rector (1995), which holds that a university may not discriminate against student speech based on its viewpoint.鈥
He [Volokh] adds that 鈥渋nterim speech restrictions imposed before a full investigation and adjudication have historically been seen as more constitutionally suspect (as so-called 鈥榩rior restraints鈥), see, e.g., Vance v. Universal Amusement, Inc. (1980); and the prior restraint doctrine is applicable to restrictions imposed by universities, see Healy v. James (1972). But in any event, even setting aside the prior restraint doctrine, suspending an organization鈥檚 social activities because of the offensive message conveyed by the organization鈥檚 past speech violates the First Amendment.鈥
FIRE has encountered investigations into whether students involved in theme parties had supposedly violated vague campus policies against harassment, intimidation, or civility with increasing frequency over the past several years. A sampling:
- In 2006, Johns Hopkins University suspended a student after finding him guilty of 鈥渉arassment,鈥 鈥渋ntimidation,鈥 and 鈥渇ailing to respect the rights of others.鈥 His offense? Posting a racially charged party invitation on Facebook.
- In 2013, California Polytechnic State University investigated the students responsible for a 鈥淐olonial Bros and Nava-hos鈥 party that some on campus claimed was offensive.
- That same year, Randolph-Macon College in Virginia vowed to hold fraternity members responsible for a 鈥淯SA vs. Mexico鈥 party because of its allegedly racially insensitive theme.
- And last year, California State University, Fullerton opened a disciplinary investigation into a sorority鈥檚 鈥淭aco Tuesday鈥 event.
As Friedersdorf writes, censoring racists (or even those who are simply speaking on racial issues) is not the answer to solving racism:
FIRE who value fundamental human rights, protecting unpopular activism, or safeguarding the political liberties of the least powerful among us ought to be lobbying for the most stringent free-speech protections possible, not undermining core human rights that have benefitted generations of marginalized people as a salve for outrage at a frat party.
Let鈥檚 hope college administrators heed that message.
Photo: Ken Wolter / Shutterstock.com
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