The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I regret to say that my own institution, UCLA, is likely violating the First Amendment in its reaction to a recent fraternity and sorority party. As Susan Svrluga (Grade Point, Washington Post) reported Thursday,
A fraternity-sorority party sparked protests at the University of California at Los Angeles after some students said the theme and costumes were racist, such as guests who apparently smeared charcoal on their foreheads to darken their faces.
The local chapter of Sigma Phi Epsilon and the sorority Alpha Phi co-hosted the "Kanye Western"-themed party Tuesday night, with costumes playing off Kanye West and his wife, Kim Kardashian, the Daily Bruin reported. Leaders of student groups, such as the Afrikan Student Union, demanded a response from the university, noting the party was held during "Black Bruin Welcome Week."
UCLA is both investigating the matter, and has suspended the fraternity and sorority's social activities for the duration of the invstigation:
We are concerned about these allegations and earnestly working to gather information about what occurred, talking to all those involved. In the meantime, both Greek organizations allegedly involved have been placed on immediate interim suspension of all social activities pending the outcome of an investigation. While we do not yet have all the facts, the alleged behavior is inconsistent with good judgment as well as our principles of community. We remind students that while they are free to celebrate in ways that draw on popular culture, their specific choices can cause harm and pain to fellow members of their community. Put simply: Just because you can do something does not mean you should.
But the suspension of the fraternity and sorority is likely unconstitutional. Costumes that convey a message are treated as speech for First Amendment purposes (see, e.g., Schacht v. United States (1970) 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. (Note that there is some controversy about whether the charcoal on the UCLA students' faces was meant to make the wearers look black, or to make them look like miners, referring to Kanye West's "Gold Digger" song; but that turns out not to be relevant to the First Amendment issue.)
Indeed, a similar situation came to a federal appellate court more than 20 years ago, in Iota Xi Chapter of Sigma Chi v. George Mason Univ. (4th Cir. 1993). Here were the facts of the case:
Sigma Chi has for two years held an annual "Derby Days" event, planned and conducted both as entertainment and as a source of funds for donations to charity. The "ugly woman contest," held on April 4, 1991, was one of the "Derby Days" events. The Fraternity staged the contest in the cafeteria of the student union. As part of the contest, eighteen Fraternity members were assigned to one of six sorority teams cooperating in the events. The involved Fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman. He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman's breasts and buttocks. He spoke in slang to parody African-Americans….
Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. Two hundred forty-seven students, many of them members of the foreign or minority student body, executed a petition, which stated: "[W]e are condemning the racist and sexist implications of this event in which male members dressed as women. One man in particular wore a black face, portraying a negative stereotype of black women."
The university suspended the fraternity, and the fraternity sued. The Fourth Circuit held that the suspension violated the First Amendment (some paragraph breaks added):
[T]he punishment was meted out to the Fraternity because its boorish message had interfered with the described University mission. It is manifest from these circumstances that the University officials thought the Fraternity intended to convey a message. The Fraternity members' apology and post-conduct contriteness suggest that they held the same view.
To be sure, no evidence suggests that the Fraternity advocated segregation or inferior social status for women. What is evident is that the Fraternity's purposefully nonsensical treatment of sexual and racial themes was intended to impart a message that the University's concerns, in the Fraternity's view, should be treated humorously. From the Fraternity's conduct and the circumstances surrounding it, we have no difficulty in concluding that it intended to convey a message….
[T]he principles relating to content and viewpoint discrimination recently emphasized in R.A.V. v. City of St. Paul (1992), provide a definitive answer [to the University's argument]. Although the Court in St. Paul reviewed the constitutional effect of a city "hate speech" ordinance, and we review the constitutionality of sanctions imposed for violating University policy, St. Paul's rationale applies here with equal force. Noting that St. Paul's city ordinance prohibited displays of symbols that "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," but did not prohibit displays of symbols which would advance ideas of racial or religious equality, Justice Scalia stated: "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."
As evidenced by their affidavits, University officials sanctioned Sigma Chi for the message conveyed by the "ugly woman contest" because it ran counter to the views the University sought to communicate to its students and the community. The mischief was the University's punishment of those who scoffed at its goals of racial integration and gender neutrality, while permitting, even encouraging, conduct that would further the viewpoint expressed in the University's goals and probably embraced by a majority of society as well. "The First Amendment generally prevents government from proscribing … expressive conduct because of disapproval of the ideas expressed."
For the same reasons, UCLA's suspension of the fraternity and the sorority likewise violates the First Amendment. To be sure, Iota Xi is a Fourth Circuit decision, and thus isn't binding on courts in the Ninth Circuit, where UCLA is located. But such federal appellate decisions from other circuits tend to be viewed as highly persuasive precedent; and in any event, this decision is consistent with a large array of court precedents from throughout the country striking down speech codes and similar university attempts to restrict speech that offends based on race, religion, sex, sexual orientation, and so on.
Indeed, in Christian Legal Society v. Martinez (2010), where the majority held that a public university could require groups to accept all would-be members—even ones that the group thought were unsuitable given its message, e.g., if an avowed atheist wants to join the Christian students'group, or vice versa—the majority acknowledged that the groups still had the First Amendment right to express whatever views they wanted. While their conduct of excluding members could be limited, their speech could not be: "Although registered student groups must conform their conduct to the Law School's regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one. Today's decision thus continues this Court's tradition of 'protect[ing] the freedom to express "the thought that we hate."'" This was from the liberal Justices (plus Justice Kennedy), but on this point all the Justices agreed.
Nor does it matter that this is only an "interim suspension." The First Amendment prohibits brief punishments for past speech, and brief restrictions on future speech, as well as long-term ones. (As this very incident shows, "social activities" of fraternities often include activities that convey a message on social or ideological topics.) Indeed, interim speech restrictions imposed before a full investigation and adjudication have historically been seen as more constitutionally suspect (as so-called "prior restraints"), 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's social activities because of the offensive message conveyed by the organization's past speech violates the First Amendment.
Now if a student organization misbehaves in ways unrelated to speech, or by using constitutionally unprotected speech, such as threats of violence—for instance, if the party organizers were threatening students who were taking photographs of the costumes—the university may indeed punish it for such misbehavior (unless the misbehavior is a pretext, and the real reason for punishment is the organization's speech).
But so far the university's explanations for the suspension have not mentioned any such misbehavior, and have instead focused on the offensiveness of the costumes. And when I asked the administration, the response didn't point to any such misbehavior. As best I can tell, this is a punishment purely based on the allegedly racially offensive content of the fraternity and sorority's expression—and the message sent to other organizations is that, if you express views (jocularly or seriously) that are seen as racially offensive, you too may be suspended. And such a punishment violates the First Amendment.
(Note also that a California statute, part of the so-called "Leonard Law," also protects students from discipline for their speech, unless such speech could be punished by the government when said off campus. But it's not clear that this statute, which bars "subjecting a student to disciplinary sanction," also covers sanctions imposed on organizations rather than individual students; that is why I have focused just on the First Amendment.)
[UPDATE, Oct. 12, 2015, 10:52 pm: I added the Christian Legal Society v. Martinez paragraph after posting the original post.]