The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE, Dec. 15, 2015: The ban has been revoked.]
All decorations in common areas in the residence hall and apartments must take into consideration that obscene, distasteful displays which are demeaning to an individual's or group's race, ethnic, religious background, and/or gender or ability, will not be permitted and will be removed immediately, at the discretion of Housing and Residential Services. The Confederate flag and swastika are NOT permitted in any residence hall, suite, and apartment or student room. . . .
Of Special Note:
The Confederate flag and swastika are NOT permitted in any residence hall, suite, and apartment or student room.
Common areas in a university dormitory are likely "limited public fora" or "nonpublic fora," in which the government can impose reasonable, viewpoint-neutral restrictions. But viewpoint-based restrictions are unconstitutional, even when the government is specifying which signs people may post on public property. (See, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. (1985), which gives advertising space on city buses as an example of a place in which viewpoint discrimination is unconstitutional; Walker v. Sons of Confederate Veterans, the recent confederate flag license plate case, reaffirmed this rule.)
And the ban on "displays which are demeaning to an individual's or group's race, ethnic, religious background, and/or gender or ability" is viewpoint-based; it forbids bigoted viewpoints, while allowing their opposites. (See, e.g., R.A.V. v. City of St. Paul (1992), noting that such classifications are unconstitutional; see also Saxe v. State College Area School Dist. (3d Cir. 2001) (Alito, J.); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ. (4th Cir. 1993).) The ban thus violates the First Amendment. The same is true with regard to the ban on the Confederate flag (and the swastika), which obviously stem from the viewpoint that those flags represent.
And this should be even clearer with regard to speech in a person's own apartment or room. Whatever power a public university may have as a property owner, it doesn't extend to restricting the opinions that students can write, read, speak or post in their own rooms. I hope the university code is promptly challenged. If it is, it will be quickly struck down.