Earlier this month, University of California, Los Angeles (UCLA) administrators temporarily suspended a campus fraternity and sorority for hosting a “Kanye Western”-themed party before even completing an investigation into allegations that some attendees wore blackface.
While no evidence that any student wore blackface has been found (several students dressed as miners, with soot-smudged cheeks and pans of gold in an dual reference to Kanye West’s song, “Gold Digger” and the gold rush of 1849), that’s beside the point: The First Amendment protects even overtly racist expression. Given that there don’t seem to be any allegations that students were engaged in anything but protected expression, there is no justification even for an investigation, let alone punishment like the suspensions leveled at this fraternity and sorority.
At UCLA, the driving force behind the university inquiry was calls from other students who, according to the Los Angeles Times, swarmed the chancellor’s office “demanding a response” from the school, and holding signs that read “Our culture is not a costume.”
The Atlantic’s Conor Friedersdorf criticized those students last week for “squander[ing] their inheritance” from the student-led Berkeley Free Speech Movement in the 1960s, which made freedom of speech a more prominent issue on the nation’s college campuses.
But Friedersdorf puts most of the onus on the university administration, which he (accurately) alleges should know better:
[U]niversity officials are abusing their authority merely by investigating protected speech in the first place. And the student newspaper is cheering them on, demanding in an editorial that the office of UCLA Fraternity and Sorority Relations take a more active role in preemptively clearing all party themes.
UCLA law professor Eugene Volokh, one of America’s foremost First Amendment scholars, has published several Washington Post items explaining why these reactions are legally dubious. “The suspension of the fraternity and sorority is likely unconstitutional,” he wrote. “Costumes that convey a message are treated as speech for First Amendment purposes (see, e.g., Schacht v. United States (1970) and Cohen v. California (1971)). And a university may not punish speech based on its allegedly racist content; see, e.g., Rosenberger v. Rector (1995), which holds that a university may not discriminate against student speech based on its viewpoint.”
He [Volokh] adds that “interim speech restrictions imposed before a full investigation and adjudication have historically been seen as more constitutionally suspect (as so-called ‘prior restraints’), see, e.g., Vance v. Universal Amusement, Inc. (1980); and the prior restraint doctrine is applicable to restrictions imposed by universities, see Healy v. James (1972). But in any event, even setting aside the prior restraint doctrine, suspending an organization’s social activities because of the offensive message conveyed by the organization’s past speech violates the First Amendment.”
FIRE has encountered investigations into whether students involved in theme parties had supposedly violated vague campus policies against harassment, intimidation, or civility with increasing frequency over the past several years. A sampling:
- In 2006, Johns Hopkins University suspended a student after finding him guilty of “harassment,” “intimidation,” and “failing to respect the rights of others.” His offense? Posting a racially charged party invitation on Facebook.
- In 2013, California Polytechnic State University investigated the students responsible for a “Colonial Bros and Nava-hos” party that some on campus claimed was offensive.
- That same year, Randolph-Macon College in Virginia vowed to hold fraternity members responsible for a “USA vs. Mexico” party because of its allegedly racially insensitive theme.
- And last year, California State University, Fullerton opened a disciplinary investigation into a sorority’s “Taco Tuesday” event.
As Friedersdorf writes, censoring racists (or even those who are simply speaking on racial issues) is not the answer to solving racism:
Students who value fundamental human rights, protecting unpopular activism, or safeguarding the political liberties of the least powerful among us ought to be lobbying for the most stringent free-speech protections possible, not undermining core human rights that have benefitted generations of marginalized people as a salve for outrage at a frat party.
Let’s hope college administrators heed that message.
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