Letter from FIRE to Assistant Attorney General D. Michael Carter

By on October 2, 2013

October 2, 2013

D. Michael Carter
Assistant Attorney General
Administration Building, Third Floor
351 West Chester
Cedar City, Utah 84720

Sent via U.S. Mail and Facsimile (435-586-5475)

Dear Mr. Carter:

Thank you for your September 6, 2013, response to FIRE’s August 19 letter. We appreciate your kind words for FIRE’s work reforming campus speech policies, and we hope to find more common ground in the future.

We disagree, however, with your defense of Dixie State University’s policy forbidding the use of Greek letters in student organization names and your assertion that Dixie State’s interest in “avoiding the ‘party school’ label” is sufficiently compelling as to justify this blanket restriction on expression. We again call on Dixie State to rescind this policy and to allow the Phi Beta Pi student group the chance for recognition.

FIRE is aware of the Supreme Court’s guidance on the extent to which government actors like Dixie State may regulate the “time, place, and manner” of certain expression on government property. In Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), cited in your response, the Court set forth the conditions necessary for such regulations to pass constitutional muster:

Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. [Emphasis added.]

Your response argues that Dixie State’s actions satisfy this test, stating that Dixie State’s ban on the use of Greek letters in club names is a “narrow restriction” that “serves the University’s articulated compelling interest in avoiding the ‘party school’ label.”

To the contrary, Dixie State’s restriction fails to meet each of these requirements—and by a significant margin. Far from being “justified without reference to the content of the regulated speech,” Dixie State’s prohibition is plainly and unapologetically content-based. It squarely targets Phi Beta Pi and other groups like it to prevent them from gaining recognition out of concern for the “party” message that Dixie State fears they would send. Indeed, Dixie State administrators have repeatedly told student Indigo Klabanoff that their concerns stem specifically from her group’s expression, including the use of Greek letters.

That “academic honor societies” are exempted from this policy makes the content-based nature of Dixie State’s policy all the more explicit. This result sharply contravenes the Court’s requirement that recognition and benefits be offered to student organizations on a strictly content-neutral basis. See Widmar v. Vincent, 454 U.S. 263, 277 (1981) (holding that after university had “created a forum generally open to student groups,” the “content-based exclusion of religious speech… violates the fundamental principle that a state regulation of speech should be content-neutral”).

The prohibition on Greek letters in student organizations’ names is not narrowly tailored, nor is the interest it serves nearly compelling enough to justify Dixie State’s restriction on student expression. Dixie State may wish to avoid cultivating a certain reputation, but this desire is not sufficient to overcome the right of students like Klabanoff to engage in free expression and association. The Supreme Court has made clear that its precedents “leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ Healy v. James, 408 U.S. 169, 180 (1972) (emphasis added) (internal citations omitted). Indeed, given the significant publicity generated by Dixie State’s refusal to recognize Klabanoff’s rights, FIRE wonders if Dixie State, in its zeal to preempt a “party school” reputation, is instead earning a reputation as an institution that does not respect the First Amendment.

Dixie State has far less restrictive measures at its disposal than the unconstitutional methods it has employed here. It strains credulity past the breaking point to assert that Dixie State cannot effectively control its public image without banning student organizations from using Greek letters in their names. Dixie State—a government institution with its own department of public relations and numerous other administrative staff—has extensive messaging resources, particularly in comparison to a handful of students trying to organize a local campus club. For Dixie State to claim that it cannot achieve its interests here without abridging the First Amendment rights of every single Dixie State student is plainly inaccurate.

Dixie State’s ban on the use of Greek letters in club names falls far short of the Supreme Court’s requirements for acceptable restrictions on time, place, or manner. Further, the clearly content-based nature of Dixie State’s ban likely renders it unconstitutional on its face.

You also reference in your response the trademark-related concerns raised with Klabanoff by Michelle Willbanks, Internal Legal Counsel for the national Pi Beta Phi sorority. FIRE is aware of the concerns Willbanks expressed to Klabanoff, as well as the fact that Klabanoff promptly responded to Willbanks, detailing how Phi Beta Pi would respond to each individual concern she raised. Willbanks has expressed appreciation for Klabanoff’s cooperation, and FIRE is confident that Pi Beta Phi’s previously stated concerns have been satisfied. In addition to responding to the trademark concerns raised by Willbanks, the proposed student group has taken the additional step of changing its full name to the Phi Beta Pi Society to eliminate any possible confusion between her group and other fraternities or sororities. Relatedly, Klabanoff is modifying Phi Beta Pi’s constitution to remove the direct reference to Rotary International’s “service above self” motto. We are confident that Klabanoff has entirely addressed Dixie State’s concerns with respect to this issue.

Again, we recognize and respect Dixie State’s desire to avoid earning a reputation as a “party school.” Violating the constitutional rights of its students, however, is an unacceptable means of achieving this goal. We ask Dixie State University once more to amend its Inter Club Council policies to eliminate the ban on the use of Greek letters in student group names that are not honor societies. We are happy to discuss this issue further with Dixie State, and to assist the university in making its policies fully compatible with the First Amendment.

We request a response to this letter by October 16, 2013.

Sincerely,

Will Creeley
Director of Legal and Public Advocacy

cc:
Stephen D. Nadauld, President
Del Beatty, Dean of Students
Jordon Sharp, Director of Student Involvement and Leadership

Schools: Dixie State University Cases: Dixie State University: School Rejects Student Group Because Its Name Includes Greek Letters