Legal Experts Divided on Whether Kutztown University Can Ban Confederate Flags

December 15, 2015

By Christina Tatu at The Morning Call

Can Kutztown University bar students from displaying “distasteful and demeaning” decorations such as Confederate flags and swastikas in residence halls and common areas?

Legal experts are divided on the question.

Here are the opinions of three experts who spoke to The Morning Call in the wake of Kutztown’s decision to halt its new policy banning such displays for further legal review.

•”To institute such invasive rules in a student’s own living space is particularly galling and inappropriate,” said Ari Cohn, senior program officer for legal and public advocacy at the Foundation for Individual Rights in Education.

In addition, the Confederate flag has different meanings to different people. Even the swastika is an ancient symbol of good luck and fortunate still widely seen in many Eastern cultures.

“To declare those symbols wholesale off-limits, I think is not only betraying an ignorance of the symbol’s history but also its meaning,” Cohn said.

•Eugene Volokh, who teaches free speech law at the University of California, Los Angeles School of Law, said he is unaware of other universities that have policies targeting specific symbols, particularly those that may be displayed in a student’s private living space.

The Supreme Court has ruled the government can impose restrictions on the display of certain materials, but the restrictions must be applied evenly to all materials regardless of their “unequivocal meaning” to some people, Volokh said.

For example, if university officials allow students to display flags, they can’t ban students from putting up a Confederate flag even though it may be offensive to some,” Volokh said.

• Mary Catherine Roper, deputy legal director of the American Civil Liberties Union of Pennsylvania doesn’t believe the law is clear in the case of Kutztown’s proposed policy.

“Whatever your rights are with respect to freedom of speech, you don’t have the right to infringe on the people around you who have as much of a right to be in that school and dorm room as you do,” she said. “I don’t know where the legal line is, but it’s a real shame if people would use their freedom of speech to be that insensitive to a roommate.”

Schools: Kutztown University of Pennsylvania University of California, Los Angeles