Last month, I visited California Polytechnic State University (Cal Poly) to speak to students and faculty about student rights. When I arrived, I learned of a brewing controversy over a party thrown by a Cal Poly fraternity. The party’s theme, “Colonial Bros and Nava-hos,” and the costumes apparently worn by some of the party-goers garnered criticism from community members who were offended. This sparked anunconstitutional investigation.
Now comes word that the results of the investigation are finally in, and, thankfully for free expression, the party planners were cleared of any accusations of wrongdoing. As reported in The Mustang News, Cal Poly President Jeffrey Armstrong and Vice President for Student Affairs Keith Humphrey sent the following statement in a community-wide email:
The review found no evidence that party hosts systematically billed the party theme in offensive terms, but it appears some of the party planners did so in an informal way … While we personally deplore this behavior, the University’s review found no verifiable evidence that any campus policies were violated.
Of course, legally speaking, the party theme would still have constituted protected expression even if the hosts had billed it in “offensive terms.” After all, the First Amendment protects even offensive speech—speech that is uncontroversial seldom needs protection. While the administration’s reasoning leaves much to be desired, it came to the right result. It’s a shame, however, that the university needed to conduct an investigation into clearly protected speech before taking this position.
Highly offensive material is protected under the First Amendment and should be protected on any campus that claims to protect its students’ right to free expression. In Hustler Magazine v. Falwell, the U.S. Supreme Court ruled that the First Amendment protects even an extraordinarily offensive parody—in that case, a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. The First Amendment protects offensive material, farce, profanity, and exaggeration.
Instead of punishing the organizers, Cal Poly conducted a non-mandatory forum to discuss diversity and inclusiveness. The Mustang News also reports that Cal Poly has “hired a curriculum specialist to assist faculty on incorporating diversity and inclusivity into the school’s curriculum, and is adding programs aimed at teaching students to ‘enhance the campus climate for diversity and inclusivity.’”
Cal Poly is within its rights to host a non-mandatory discussion on these topics, but coercive measures like those Johns Hopkins used would not pass muster under the First Amendment. FIRE will continue to monitor Cal Poly’s response to the situation and keep Torch readers informed of any developments.