Fraternity Cleared of Discrimination Charge for Protected Speech But Punished Anyway | The Foundation for Individual Rights and Expression

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Fraternity Cleared of Discrimination Charge for Protected Speech But Punished Anyway

On May 23, a University of Wisconsin-Madison disciplinary committee voted 10-0 to clear the Delta Upsilon Fraternity (DU), a registered student organization (RSO), of a charge of discrimination, finding that the speech in question was protected expression. According to the disciplinary committee's findings and an evidence packet, two student members of DU, after a long night that seems to have included some kind of party, noticed two non-members (who also were students at the university) trespassing on DU's property. The DU members yelled at the non-members using sentences such as, "How did it feel to be peasants," and the individuals heard the sound of breaking glass that sounded like a glass bottle had been thrown at or near the non-members. The non-members, who are black, interpreted the DU members' words as racially motivated.

The disciplinary committee unanimously found, however, that "these comments—however odious and repugnant—are not expressly prohibited." The committee's reason was that the RSO Code of Conduct does not expressly prohibit discrimination on the basis of socioeconomic status, and the comments in question were of that nature rather than on the basis of race. However, even if the comments had been interpreted as being about race, they still did not constitute an act of prohibited discrimination. 

Indeed, the language does not meet the Supreme Court's definition of discriminatory harassment among students in the educational context (not to mention that this incident seems to have occurred off campus, since there are repeated references to DU's "property" in the committee's report). In Davis v. Monroe County Board of Education (1999), the Court provided a working definition of discriminatory harassment, which is that for conduct to be actionable, a victim must be targeted because of their protected class status and the conduct must be not just unwelcome but also so severe, pervasive, and objectively offensive that it effectively denies the victim equal access to institutional resources and opportunities. (Davis dealt with gender, but as the Supreme Court's only guidance with regard to student-on-student discriminatory harassment, colleges fail to use this definition at their peril.) The bottom line is that the speech at issue would have to be more than simply offensive to lose First Amendment protection. 

But what about the bottle? The committee could not identify whether the bottle was thrown, where it was aimed, or even who threw it. And according to two accounts, the trespassers were already walking away when they heard the bottle shatter.

Two charges against DU did stick—but they are highly suspect. It seems that without anything else to pin on DU, a majority of the committee used the broken bottle as a pretext, concluding that despite the confusion over what actually happened with the bottle, the person who may have thrown it had endangered the safety of the other individuals as well as nearby pedestrians. That charge is a stretch, going by the findings in the committee's report.

More ominously, DU was found guilty of violating a rule that says an RSO "[m]ay be subject to disciplinary action as a result of actions of individual members of the organization while representing the organization." Not only is this another stretch—Who was the culprit? Did he officially represent DU? Was he a rogue agent?—but also this is one of the most vague rules I have ever seen. If a whole RSO can be punished whenever a disciplinary committee invokes "actions of individual members," no RSO is safe from arbitrary punishment, and no RSO can have the slightest idea of what new action might be prohibited and punished. Often a provision like this one is ruled unconstitutionally vague, particularly when it is applied to punish speech.

Further, it seems that this rule is merely one that explains how other rules apply, not a substantive rule in and of itself. It should not count as a basis for a separate charge.

DU has many grounds on which to appeal, and I hope it exercises that right.

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