Fraternities Must Stand Up to Schools’ Squelching Free Speech

By on October 11, 2004

While there is no shortage of free-speech battles on college campuses, fraternities have the dubious honor of being at the center of many of the least-sympathetic controversies.

From Halloween parties where brothers show up dressed as Ku Klux Klan members to fraternity newsletters that graphically relate a brother’s sexual exploits with named co-eds, fraternities sometimes express themselves in ways that are not exactly likely to win the battle for hearts and minds.

However, although fraternities later may regret the actions of some of their brothers, they must not allow their rights to be stripped away by overzealous or opportunistic administrators. The freedoms of all college and university students may rest on fraternities’ willingness to stand up for their rights.

Fraternities are by no means alone in having their rights abridged. A  quick examination of the Web sites for the Foundation for Individual  Rights in Education, or FIRE (www.thefire.org), and the Student Press Law Center (www.splc.org) demonstrates the pervasiveness of assaults on free speech on campus.

Many of these controversies are downright absurd, such as that at Rhode  Island College, where a professor was tried for “discrimination” after  merely refusing to punish a student who had engaged in “offensive”  speech (the professor rightly believed she had no power to do so as a public employee, but the proceedings went ahead anyway), or Texas Tech University’s establishment of a “speech zone” that restricted free expression for the university’s 28,000 students to one 20-foot-wide “Free Speech Gazebo.”

These cases, along with dozens of others, demonstrate that many  universities are not, even minimally, living up to the ideals of truly open and free-flowing expression on which an intellectually robust university depends.

Free speech too often is taken for granted until an organization faces a challenge to its own existence. Beyond the obvious good of defending one of our country’s deepest principles, a fraternity advocating free speech as one of its causes achieves additional benefits both for the fraternity and for the university as a whole.
First, it provides an opportunity to educate brothers about free speech, its parameters, its limits and common controversies that have arisen. At the same time, it provides an opportunity to remind brothers that the right to engage in a particular form of expression does not make that expression wise or good. Although “offensive” expression is protected by the First Amendment, fraternity brothers will learn from accounts of previous fraternity speech controversies that it may subject a fraternity to unwanted public scorn or embarrassment. These lessons may help prevent potentially troublesome situations.

Second, successfully defending against an attack on the free-speech rights of other groups may prevent administrators from attempting to use similar tactics. For example, in 2003, the University of California, Irvine, shut down the College Republicans’ “affirmative action bake sale,” a widely used political protest parodying affirmative action policies, arguing that it was a form of discrimination.

Regardless of what one thinks about the propriety of such protests, the bake sale was a fully protected form of political satire and not discrimination in any legal sense. FIRE intervened by writing to the university and explaining why the school’s actions violated both the letter and the spirit of the First Amendment, which brought the case national media attention.

A few months after FIRE’s intervention, the College Republicans held the sale again. Instead of fielding official repression, the bake sale was allowed to proceed without administrative intervention. After a brief and public outcry against its actions, the university learned it could not use discrimination as a back door to censorship. By intervening in such free-speech controversies, fraternities can educate their university that commonly used tactics to circumvent free-speech rights will not be tolerated quietly. Taking such action may prevent attempts to silence speech.

Third, standing up for others’ rights may mean that the fraternity will not be alone if or when it needs defending. A fraternity that supports a university’s decision to punish the expression of another group will not have a great deal of support when its own rights are challenged. While, legally, the popularity of a particular expression is irrelevant to its protected status, as a practical matter, the support of other groups or the student media can prevent a free-speech controversy from mushrooming into a witch hunt.

Finally, and perhaps most important from a legal standpoint, speaking out on such issues may have an additional surprising benefit: It may help secure a chapter’s legal position as an expressive association. A recent federal appeals court ruling, Pi Lambda Phi Fraternity Inc. v. University of Pittsburgh, 229 F.3d 435 (3rd Cir. 2000), held that fraternities that speak out on issues are more likely to be entitled to free-association protection than those that do not. In that case, the 3rd Circuit denied a fraternity the protections afforded to “expressive associations.”

“Nothing in the record indicates that the Chapter ever took a public stance on any issue of public political, social, or cultural importance,” the court said.

If ever the right to exist on campus is challenged, a fraternity’s position will be enhanced greatly if it has taken positions on issues and actively exercised its members’ right to speak. Advocating for free speech is a perfect opportunity to establish a fraternity as an “expressive association.”

Whether because of a reluctance to defend some of the actions of their brothers, a desire to avoid a confrontation with the administration or a basic misunderstanding of their rights, fraternities too often do not fight back when universities impose punishment for engaging in protected speech.

However, fraternities, their alumni and their nationals must remember that, in our legal system, all citizens enjoy only the rights that the least of us enjoy. Therefore, fraternities need to realize that what might seem like a trivial fight over an offensive Halloween costume may have a profound impact on administrators’ or students’ approaches to dealing with speech.

Fraternities willing to fight for their free-speech rights usually prevail. Universities have come to depend on the acquiescence of students when they impose illegitimate sanctions for protected speech. When colleges are challenged, however, pressure from the public, the media, alumni, donors and organizations like FIRE is often enough to force a university to back away from morally and constitutionally objectionable sanctions against students or organizations. When public pressure does not suffice, lawsuits usually do.

In those rare instances in which universities have insisted on litigating such cases, they typically lose. Fully litigated cases involving free-speech rights of students resulting in legal decisions are somewhat rare; often, when a fraternity or other organization files a lawsuit, the university backs down shortly thereafter.

For example, when officials at the University of California, Riverside, disbanded a chapter of Phi Kappa Sigma for three years after it produced a T-shirt that some Latino students found offensive, the fraternity filed suit. The university quickly reversed the sanctions, settled the lawsuit and agreed to have two top administrators attend

First Amendment “sensitivity training.” Similar scenarios involving fraternities have occurred at Auburn University and California State University, Northridge. When the fraternities filed lawsuits alleging a violation of their free-speech rights, the universities readmitted the chapters and settled the lawsuits. Given the clear weight of the law against such unconstitutional policies, one easily can see why universities are so reluctant to take their cases to court.

We have not seen the last time a fraternity gets in trouble for offensive expression, but FIRE hopes that the next time such a controversy arises, the fraternity, its alumni and its national governing body will recognize the importance of protecting the right to free speech. Standing up for free speech in general does not mean the same thing as endorsing the expression itself. Defending expression that is unpopular or that one personally disagrees with requires courage and principle and is crucial to safeguarding the rights of all students.

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Schools: Rhode Island College University of Pittsburgh University of California – Riverside University of California, Irvine Texas Tech University