Free Speech

Students Sue UConn in "Racial Ridicule" Case

The students say their threatened punishment, for walking near student housing shouting "nigger" (at no-one in particular), violates both the First Amendment and a 1990 consent decree.


From the Complaint in Mucaj v. Univ. of Connecticut, just filed today. (The legal argument supporting these allegations will come in a day or two, in the memorandum supporting the motion for a temporary restraining order, and the university will in turn submit its own legal argument—I plan to blog about those arguments then. Note also that Jarred Karal has agreed to probation in his criminal case, but Ryan Mucaj is apparently still fighting the charges.)

[1.] This is a civil rights action to remedy deprivation of First Amendment rights, concerning retaliation by the University of Connecticut … against the plaintiffs, Ryan Mucaj and Jarred Karal (students).  The retaliation impermissibly discriminates as to speech content and viewpoint….

[3.] The gist of the claim is that based on uttering an offensive word, a racial slur, not directed at any individuals and unaccompanied by violence or threat of violence, the school finds that the students violated the school policy prohibiting "Disruptive Behavior."

[4.] The school finds that the recommended retaliatory sanction for the protected speech is, among other things, removal of the students from student housing, thereby depriving them of their physical welfare, contractual rights with the school, and inhibiting their otherwise ready access to the school environment.

[5.] The school's actions not only violate the First Amendment, but also violate the court order and consent decree in Nina Wu v. University of Connecticut, CV H-89-649 (PCD) (January 25, 1990) …, which is the basis of the contempt findings sought….

[22.] On information and belief, in early 1989, Nina Wu was a junior at the University of Connecticut.

[23.] On information and belief, at about that time, Ms. Wu hung a handmade poster on her dormitory room door.  The poster listed the types of people who were "welcome," "tolerated." "unwelcome," and "shot on sight."

[24.] On information and belief, the latter category listed "bimbos," "preppies," "racists," and "homos."

[25.] On information and belief, the school found that Ms. Wu violated the school harassment policy by way of the poster. Based on the use of the word "homos," the school expelled Ms. Wu from all residential and dining halls in April, 1989.

[26.] On information and belief, Ms. Wu subsequently brought an action in federal District Court, District of Connecticut, pursuant to 42 U.S.C. § 1983, alleging deprivation of her First Amendment rights.  Although she denied writing the word "homos," she asked the court to assume that she did.

[27.] On January 25, 1990, the court, the Honorable Peter C. Dorsey, District Judge, entered judgment in accordance with the consent decree.

[28.] Pursuant to that consent decree, the school agreed to be permanently enjoined from enforcing the school harassment policy employed against Ms. Wu, as that policy existed at the time.  Specifically, the school agreed to excise the prohibition in the policy concerning "making personal slurs or epithets based on race …." (Emphasis added.)

[29.] In its place, the school adopted a policy prohibiting the "face-to-face" use of "fighting words," in accordance with that legal doctrine.

[30.] The school furthermore agreed to be permanently enjoined from "enforcing … any other policy that interferes with the exercise of First Amendment rights by the plaintiff or any other student, when the exercise of such rights is unaccompanied by violence or the imminent threat of violence." (Emphasis added.)

[31.] The school also agreed to provide Ms. Wu with a dormitory room, to restore her dining privileges, and to pay Ms. Wu reasonable attorneys' fees.

[32.] On information and belief, for between five and thirty years, the school and its officials and employees have disregarded their obligations under the consent decree, and has failed to take any reasonable precautions to ensure the order is followed or even that successive officials are made aware of its existence.

[33.] On information and belief, notwithstanding being repeatedly reminded of its obligations under the consent decree [citing a Jan. 2015 letter from the ACLU of Connecticut], the school and its officials and employees continue to disregard their obligations under the consent decree, and fail to take any reasonable precautions to ensure the order is followed….

[38.] On October 11, 2019, Defendant [Associate Vice President for Student Affairs and
Dean of Students] Daugherty viewed an October 11, 2019 video that showed the plaintiffs' walking through a parking lot, late at night.  A student emailed to her an internet link to the video.

[39.] The video appears to be captured from an apartment window using a cell phone.  It appears to depict three inebriated college students playing a word game involving various taboo or offensive words.

[40.] On information and belief, Defendant Daugherty believed she heard the defendants utter the word "nigger" in the video….

[42.] On information and belief, Defendant Daugherty reported what she viewed to the University of Connecticut Police Department because she found the utterance offensive and believed others did as well….

[46.] Starting in October, 2019, the school commenced disciplinary processes against the students.

[47.] The processes began with a series of investigative hearings, styled as "meetings," with student Ryan Mucaj and student Karal, each independently, conducted by Conduct Officer Kytan.

[48.] On information and belief, the purpose of these hearings and the process of which they were a part was to investigate and sanction the students for their speech on October 11, 2019, offensive but protected.

[49.] In addition, at about this time, Karal was subject to an investigation by the Nursing School at University of Connecticut, alleging that his speech violated professional standards for him as a nursing student, because of the content of his speech on October 11, 2019

[50.] These investigations, distinct from any possible sanctions, alone violate the consent decree and burden the plaintiffs' speech, as "enforcing … [a] policy that interferes with the exercise of First Amendment rights by … [a] student, when the exercise of such rights is unaccompanied by violence or the imminent threat of violence." …

[54.] In the October 25, 2019 hearing, Mucaj asked conduct officer Kytan if Mucaj was being investigated "because of something I said," and Kytan responded, "Yes." …

[56.] During the meetings, it was made clear to both students that they were being investigated because of a claim that they uttered offensive language on October 11, 2019….

[69.] [UConn Conduct Officers] "found" that the students violated a policy worded as follows:

"Disruptive behavior, which is defined as participating in or inciting others to participate in the disruption or obstruction of any University activity, including, but not limited to: teaching, research, events, administration, student conduct proceedings, the living/learning environment, or other University activities, on or off-campus; or of other non-University activities when the conduct occurs on University premises; or of the living environment, on or off-campus."

[70.] Conduct Officer Kytan found and explained, that among other things, her recommended sanction was to terminate the students' housing agreement with the school….

[73.] Conduct Officer Kytan further explained that if the panel upheld her finding, the students would have to vacate their on-campus homes within 24 hours.

[74.] At no point in any of the proceedings was either student accused of acting with violence or the imminent threat of violence, or any misconduct even remotely approaching such.  The school has only ever accused the students of acting orally and verbally….

[79.] [Despite the Wu consent decree], the school continues to the present day with "enforcing … [a] policy that interferes with the exercise of First Amendment rights by … [a] student, when the exercise of such rights is unaccompanied by violence or imminent threat of violence," in direct derogation of paragraph 1 of the consent decree….

[91.] The school's conduct violates the order and consent decree, which is clear, and the school does so without fair ground as to doubt the wrongfulness of the conduct of its officials or employees.

[92.] The Disruptive Behavior policy is an unconstitutional abridgement on its face, and as-applied or threatened to be applied, of the plaintiffs' rights to the freedom of speech under the United States Constitution, First and Fourteenth Amendments….

[95.] The Disruptive Behavior policy as-applied or threatened to be applied, is a content-based and viewpoint-based restriction on speech….

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  1. Given the prior consent decree, that seems pretty open-and-shut. Does UConn have any possible response that shouldn't be accompanied by a laugh track?

    1. Save the laugh track for when one of these students tries to find worthwhile employment

      1. Yeah I bet you guys are the type that love to destroy lives over uttering one word in jest at one time.

        1. Unless you propose to compel someone to hire these guys, how do you expect these guys to persuade a legitimate enterprise to employ them?

          1. Should businesses be legally required to hire ex-felons?

            1. The endless list of things government can do to force people to not do stuff! I'm surprised there isn't more fighting over who gets to wield this awesome power.

          2. They can always find employment as editors for the New York Times.

            Ask Sarah Jeong.

            1. Expressing resentment toward your betters in this manner is a Volokh Conspiracy tradition. Must be a clinger thing.

      2. "Save the laugh track for when one of these students tries to find worthwhile employment."

        Yup. Of course, it is the same small-minded intolerance that prevents a gal who had a naked picture go viral from finding employment, or that prevents people who have been released under the first steps from finding employment. Hilarious though.

        1. It is, in fact, the same small-minded intolerance that led to the Babson Prof being fired in the other thread.

    2. I sense a lot of Babylon Bee material from this one.

  2. Prof. V, it looks like your subtitle to this post was truncated or dropped a word or phrase. From context, should it perhaps end: "... a court order and consent decree"?

    1. Whoops, fixed, thanks!

  3. You know, these kinds of problems would all go away once we admit that in loco parentis is dead as a legal concept, and should die as a cultural concept too.

    Until it dies culturally though, universities will continue to think this course of action is appropriate.

    1. The people doing this probably don't understand or care what you are saying and are doing this merely because they are religious zealots for the cult of social justice or afraid of said religious zealots. If you try to explain what Latin means to them they'll probably think you're misgendering them by leaving off the x.

      1. This. Progressivism is a millenarian cult

      2. I gather Volokh Conspiracy fans object to the University of Connecticut’s reported conduct while preferring the handiwork of nonsense-teaching, bigoted, conservative-controlled educational institutions that expel students for offenses such as eating a piece of rainbow-hued cake.

        Carry on, clingers. Until you are replaced, that is. By better Americans.

    2. I think the applicability of in loco parentis to university students basically died when the age of majority was lowered from 21 to 18, making university students from freshman up legally adults rather than legally minors.

      Because the legal concept of in loco parent is appliea to minors, it simply stopped applying.

      As the “Bong hits 4 Jesus” case showed, the concept is still very much alive at the High School level and below. That case suggests disciplinary action for an epithet is still quite possible, and the concept of in loco parent is is still very much alive, for students who remain legally minors.

      1. And yet universities continue to use that argument as the basis for policies and abuses like the one described in this article. And too often, trial courts continue to buy the argument.

      2. Go look at any traditional university's mission statement and tell me the concept isn't alive and well at that level too.

        For that matter, the entire reason the school tried to kick these guys out of the dorm is because their contract went well above and beyond a normal rental agreement. Why did it do that? Because they think they aren't just providing housing to students, but providing a "community" where blah-blah-blah.

        For that matter, why are university dorms so different then any other rental in America? It's damn-near impossible to find that kind of set-up anywhere else. But it's super common to college campuses, because they have this idea that they're teaching "culture" and "community", not just math and physics.

        Heck, look at all the affirmative action cases that keep going to the SCOTUS. In every case, the SCOTUS has said "well okay, this bit here is wonky, but overall we're OK with the idea that you're 'curating' your student body, so just find a different way."

        The legal concept is dead. The cultural concept is alive and well.

  4. It's really way over broad, especially in this context. In addition, it's almost certainly not enforced in a consistently racially neutral way.

    Although, I would find it slightly amusing if the University of Connecticut decided to sue then ban the Nabisco corporation from campus for its use of racial slurs in its marketing for its chocolate cookies with vanilla filling.

  5. Give em hell kid.
    Now congress should pass a law applied to private universities conditioning receipt of federal funds on their adhering to the first amendment

    1. Too many senators† went to Ivy Leagues where the idea of it being a "community" and "culture" is way too strong for that to happen.
      †Not representatives, just senators.

  6. Glad Volokh has black bloggers who know what it’s like when white kids shout “nigger” outside your room.

    1. The first amendment protects all kinds of unpopular and unfortunate speech. That's kind of the point. If it was neither unpopular nor unfortunate, there'd be no need to protect it.

    2. Are you black? If not you are culturally appropriating blackness.

      If you are, and these kids are white, you are culturally appropriating whiteness; if these kids are black, your are culturally appropriating white legal culture.

  7. The school's behavior here was inexcusable, and one wonder's where its in-house counsel was . . . this should have been nipped in the bud really early on.

    The students' own behavior was vile and racist. They should not have been punished for it, and I hope they get fair compensation. I am mollified by the knowledge that, each time they apply for work in the future, it will be known that these chaps are comfortable loudly shouting "nigger" in public. Would I knowingly hire people like that? (Some questions answer themselves.)

    This incident should not destroy the rest of their lives. But I have no problem with it impacting their lives in a significant way. No problem at all.

    1. Maybe a talking to and thats about it. I think I'd be a lot more annoyed about someone shoplifting from my store. Or do you have any reason why we should be so enraged about someone saying a mean word into the air at nobody at one time?

      1. Choosing that particular mean word says a lot about what sort of person you are and how you do with social requirements.

        1. Really? You get instant and accurate deep insights into a person's fundamental character and psychology if they happen to utter the N word randomly to themselves at one point in their life? I'd like to see the studies for that.

          1. It is a religious conviction, dont question it

        2. So what does it say about Jay-Z?

          1. That context matters.

            1. Ah, yes, using racial epithets for paid entertainment is good, but for casual entertainment is bad.

              1. No, it's that saying it to millions of people is good, but saying it in the middle of the night when no-one can hear is bad.

        3. Whereas being convicted of a felony says what?

        4. "Choosing that particular mean word says a lot about what sort of person you are and how you do with social requirements."

          Prof Volokh chose to quote the word in this article. Does that say a lot about what sort of person he is and how he does with social requirements?

          1. News for you: context is a thing that exists, and helps determine the character behind words you use.

            1. Context certainly exists. Which context indicates worse things about "what sort of person you are and how you do with social requirements, " the context in which the students used the word, or the context in which Prof V. used the word?

              Frankly I could see arguments either way.

              1. You will notice that--upthread--not a single person whined about me using the word "nigger" in my earlier post. That's because God gave the other posters brains and they all realized that my own use of the word was 100% "clinical" (ie, that I was quoting someone). So, every single person immediately saw that there was a 0% chance that I was using the word maliciously. That was non-controversial.

                The fact that some people, now, after-the-fact, are bleeting about EV's use of the word suggests to me that there is an ulterior motive behind their questioning. What it tells me about Prof. Volokh is that he is a person who refuses to infantilize his VC audience. It tells me that he insists on treating us like adults . . . even when we bend over backwards to show him that some of us have the maturity level of a kindergarten recess food fight.

                The very idea that, in a case that involves (and revolves around) an adult loudly and repeatedly shouting "nigger," EV cannot and should not use that actual word is, um, unusual. To me, anyway.

                In my 43 years of (Jewish-determined) adulthood, I have never used that word in normal conversation. But I use quite often, in court, when questioning witnesses about what they said/heard. And I have no problem using it here, when--again--it means I am directly quoting. For what it's worth; in the 30 years I have known Eugene Volokh, I have never known him to use *any* racial or offensive words, other than when he's directly quoting someone else who had said/written them.

                The context of the students' use was: They were alone, and shouting the words. Over-and-over, in a manner that indicated they clearly wanted to be heard. That's context. And (as Prof. Volokh and the facts of the case also made clear), they were absolutely not intending to direct that word at any particular person or group of people. That's also context.

                TwelveInch, are you really suggesting that EV start treating you (and other VC readers) as though you were a tender child, and that he deliberately avoid using offensive words when citing to actual events? Based on your lengthy history of posts here, I find that difficult to believe . . . my impression of you was that you were perfectly capable of hearing, in a clinical context, pretty much everything, and giving a measured response. (The fact that you and I agree a shockingly small percentage of the time never affected my belief that you're a fully-formed adult and capable of hearing mean things without getting the vapors and dissolving into a small pool of melted snowflakes. Please reassure me that my earlier positive assessment of you was correct.)

                1. santamonica811, if you think the use of the word "nigger" in contexts like this is non-controversial, you've been living under a rock. The CEO of Papa Johns was fired for using the word in a similar context, and a few Professors have been disciplined.

                  Many people feel that the word should never be used. I don't agree with that, but the two contexts really aren't that different. In neither situation were the speakers using the word to describe black people, the students were simply shouting taboo words. Prof Volokh could have easily bowdlerized the word if he wanted. And Prof Volokh's use was intended seen by a large amount of people, the kids' use wasn't heard by anyone until someone recorded it and turned up the volume.

                  1. Oh. My. God. Eugene Volokh is a well-known expert on First Amendment law, with one of his areas of interest being free speech. You DO get the difference between the head of a company using offensive terms and a FIRST AMENDMENT PROFESSOR (I know I'm "shouting," but this context both matters and is bleeding obvious) using these terms to discuss an actual living case? I refuse to believe that you're acting in good faith here.

                    (If Papa John himself attended a free speech conference as a speaker and, during a panel discussion, asked the audience, "Folks, I am confused as to why a white person like me cannot say the word 'nigger' in public while a black comedian can.", then I'd be jumping to his defense . . . and so would Professor Volokh as well, I reckon. Because the context makes it clear that he had used that term in a clinical sense.)

                    Of course Prof. V *could* have changed or 'softened' the word. I suspect that, because this blog was, originally, populated largely by law professors, lawyers, and law students, that might inform his word-choice. I feel confident that if, say, a Jr. High School asked him to come and speak at an assembly, EV would make a conscious decision to avoid certain language. When I was in law school and was teaching a law class to a local high school, I would never have considered using "nigger" as part of the lesson. (On the other hand--with advance permission of the regular teacher--I did quote directly from the "Fuck the Draft" case, which, not surprisingly, immediately got the interest and enthusiasm of the students. Informing and rank pandering at the same time, I admit.)

                    I, for one, am glad that EV and the other VC members feel comfortable treating me as an adult. YMMV.

                    1. "You DO get the difference between the head of a company using offensive terms and a FIRST AMENDMENT PROFESSOR (I know I’m “shouting,” but this context both matters and is bleeding obvious) using these terms to discuss an actual living case?"

                      No, I don't get the difference between the CEO of Papa John's using the term to reference Col. Sanders' behavior and a Professor using the same term in a similar context. Maybe instead of "shouting" you can explain what you think the difference is.

                      For another example, an Emory professor is being fired for a similar use of the word. Maybe you think that case is different because the Prof was Torts and not First Amendment?

                    2. 12,
                      Thanks for the link to the Emory professor.
                      From what the article says: No, that is appalling, and it's the same principle--that context makes it clear that the professor is directly citing to an actual event in the past. (What makes it more appalling is that, as you allude to, it was said in private, to one person, and you and I--and pretty much every one who reads the VC, I suspect.) think it's terrible that the professor faced any blowback at all from what clearly was intended to be a teaching moment.)

                    3. You might change that position, santamonica, if you were familiar with some of the emails the professor has sent when engaging in viewpoint-controlled censorship. The Conspiracy is not above banning particular words. It’s just that the choices are unusual.

        5. Right...
          But only if whitey is the one saying the word?

      2. "Enraged" is, of course, a personal judgement.

        But like most things, what people do in moments of weakness, when they let their guard down, when they're drunk and less inhibited, do say things about the person.

        So if you go on racist tirades when you're drunk? Then you're probably racist all the time, just doing a better job of filtering it on account of sobriety.

        If you start dropping slurs when you're angry in a game? Then you probably think those words are acceptable to use all the time, it's just that when your'e not angry, you do a better job of filtering.

        If you think it's acceptable to say sexist bullshit about the waitress and skimp on the tip? You probably think it's okay to be a sexist asshole, you just do a better job of filtering yourself when talking to your date

        Whether you get "enraged" is a personal choice.

        But I see nothing wrong with judging people for their actions.

        1. Yup. These students probably think that it's OK to say things that are taboo for the sake of being transgressive. Good for them.

          1. Like traditions in general, it's important to know why a taboo is there before you reject it. And if you do, you don't reject it simply because it is a taboo/tradition, you reject it because there's some part of it that is wrong.

            Which is to say, I don't fault the kids for thinking it's sometimes okay to be transgressive. But I do fault them for thinking that being transgressive is, in and of itself, a virtue.

            And if your judgement of them is correct, I would fault these students for being transgressive for it's own sake. That bullshit is stupid when it's my teenage nephews throw around swear words around and giggling over it like they did some great thing, and that bullshit is stupid when it's adult college students throwing slurs around and giggling over it like they did some great thing.

            1. "I would fault these students for being transgressive for it’s own sake."

              Society needs a certain amount of transgression for its own sake.

  8. The N word is free speech. I mean you can list all kinds of stuff but really it just boils down to that.

    Let me fix it for them. Go to the next black fraternity event. Yes, you can have "black" organizations on campus but not "white". Just record whatever music is being played loud enough for everyone to hear.

    File a complaint about use of the N word and see what happens. Which of course will be nothing.
    This whole debate is just childish.

    1. Wrecking,
      I'm not sure I see your point. Are you saying that context does not matter at all? Are you saying that context *should* not matter at all? If so; that's a pretty weird--and out of the mainstream--view.

    2. Thank you for the stale white suoremacist perspective. You don’t see that as much as you used to, at least not in public.

  9. I think the students will likely win.

    But separate from the merits of this case, are consent decrees perpetuities? Do they ever expire? Do they still hold even if the law they were based on changes around them?

    From the point of view of the university officials, who are in a culture that regards what the students did as obviously and horrifically wrong and for whom the federal First Amendment law on the books must seem similar to federal drug law in a legal-pot state or speeding laws on most highways, I imagine the existence of the consent decree, and being accused of contempt of court based on it, must make them feel like they were struck by lightning.

  10. Its stunning how some folks have more sympathy for convicted/admitted murderers/rapists than they do for those who commit the occasional social justice faux pas

    1. It just shows the wisdom of the first amendment, the ease with which people will gleefully adopt government punishment of speech they don't like.

      It's a trivial thing for those in power to wield to their political advantage, as is being done.

      1. It is as if people in power want to suppress the truth.

    2. I see no reason to appease, let alone embrace, bigots. The bigots still have their fans, though, especially at a conservative blog.

      1. That's sad Artie? You can't even embrace yourself.

        Good thing Reason and this blog allow bigots or you would never be allowed to post here!

  11. Looking at the specific facts, I was struck by:

    [39.] The video appears to be captured from an apartment window using a cell phone. It appears to depict three inebriated college students playing a word game involving various taboo or offensive words.

    Still stupid, offensive, insensitive, ... but maybe not so overtly racist. No idea how that would/wouldn't impact the legal side.

    1. If the punishment was clearly frivolous and extreme, it would make the judge more upset. Some judges seem to think that "wasting my time with this nonsense" should be a capital offense.

  12. Lots of interesting questions and thoughts. I really wish I could comment on some of these. Maybe in a year 🙂

  13. This thread’s take on the N word is an interesting contrast to the thread on the Prof with the tweet to Iran earlier this week.

    1. Or you talking about the guy that used to be a prof at Boston College before becoming the Director of Sustainability at Babson? That no longer a prof but admin hire subject to different HR rules?

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