Discipline of Southern Mississippi Band Members Raises Possible Free Speech Concerns

March 21, 2012

The Associated Press reports that the University of Southern Mississippi (USM) has taken disciplinary action against five members of the university’s pep band for chanting "Where’s your green card" at Kansas State University basketball player Angel Rodriguez while he shot free throws during a game against USM last week. The university confirmed in a statement issued yesterday that "[t]he students have had their pep band scholarships revoked, have been removed from the band, and will be required to complete a two-hour cultural sensitivity training course this week."

University sports teams and bands are not independent from the university in the way that student organizations (like a chess club or the College Republicans) are. As a result, universities do have more leeway to regulate those organizations, including conditioning membership upon adherence to certain standards of behavior. Indeed, the U.S. Supreme Court has held that "[b]y choosing to ‘go out for the team,’ [students] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally… students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges." Vernonia School District 47J v. Acton, 515 U.S. 646, 657 (1995). So if the students’ chant violated the band’s standards of conduct, then the dismissal of those students from the band (and the attendant revocation of their band scholarships) may be appropriate. 

However, it appears as if the university is also imposing discipline on the students purely in their capacity as students, by requiring them to attend cultural sensitivity training even though they are no longer members of the band and have had their band scholarships revoked. This raises free speech concerns, because although the speech may have violated the band’s conduct regulations, it is clearly protected by the First Amendment. Of course, USM is a public university, bound to uphold its students’ First Amendment rights, and it cannot punish students purely in their student capacity for engaging in protected speech. If the training were required as a condition of reinstatement to the band or continuation of the scholarship, that might be a different story, but from reports so far it seems as if it is a wholly separate penalty.

FIRE is keeping an eye on this case and will keep Torch readers updated on any relevant developments.

Schools:  University of Southern Mississippi