ATHENS, GA—In response to the Foundation for Individual Rights in Education (FIRE), the University of Georgia (UGA) has unequivocally affirmed the free speech rights of its students. It also has apologized for a University administrator who had ruled on what protected forms of expression were prohibited at this public university. "The University of Georgia acted quickly to assure its students and FIRE that it would not prohibit them from displaying the state flag of Georgia," said Thor Halvorssen, chief executive officer of FIRE; "free expression has been affirmed at this University."
In July 2002, an administrator in UGA’s Office of the Dean of Students emailed all fraternities on campus, instructing them to "make sure that no stars and bars flags/confederate flags (unless you are flying the pre-56) can be seen from any house windows." This would include, of course, the state flag of Georgia itself.
When a student questioned the order, the administrator replied that, despite no formal policy banning the flag in question, such a display would "violate the diversity plan." He warned that the University’s Inter-Fraternity Council (IFC) "would bring any group up on violation" if it displayed the state flag, and he expressed his wish that "no group would ‘push’ this issue."
The student advised FIRE of this threat to constitutional and free speech rights, and he informed UGA that FIRE had been alerted. Quickly, the administrator replied by email that he had meant only that there was a "gentleman’s agreement" with fraternity presidents not to fly the flag, and that he had not actually meant that students "would" be brought up on charges by the IFC.
FIRE wrote to UGA, asking for a clarification of its policies and for assurances that this public university would uphold the constitutional rights of its students. "The University," FIRE wrote, "must not threaten them, either explicitly or implicitly, for exercising those rights." In October, Vice President for Student Affairs and Associate Provost Richard H. Mullendore wrote to FIRE: "Please be assured that the expressive rights of students and student organizations are acknowledged and respected on our campus. Greek student organizations and their governing councils have the same rights and responsibilities as all other recognized student organizations….We apologize if any actions by a staff member were perceived to be non-supportive of an organization’s expressive rights."
Violations of Legal Equality and Freedom of Expression on Campus: A National Trend
The Georgia case, while successfully resolved, is only the tip of the iceberg. In the name of protecting students from "offense," administrators frequently invent policies that, in practice, apply only to fraternities.
"Universities should be centers of free expression and equal rights," said Halvorssen. "In fact, fraternity students, unpopular in the eyes of administrators, very frequently find their rights deliberately disregarded. In a free society, individuals who find fraternities or their protected expressions and behaviors offensive always have the weapons of persuasion, moral witness, or cold contempt. They should not have the power to call upon the selective and heavy hand of coercive authority and censorship."
University of Tennessee
On October 23, 2002, five student members of Kappa Sigma at the University of Tennessee (UT) wore black paint on their faces, dressing as the Jackson Five for an "air guitar" competition at a campus party.
Another student attended as Louis Armstrong. On October 31, after several students complained that they were "offended" by the costumes, the University suspended the fraternity, banning it from participating in University activities
The following cases reveal how widely these principles have been ignored, and they illustrate a disturbing picture of a national trend. "The issue is not what we wish people would do or say," Halvorssen noted; "the issue is the freedom and legal equality possessed by individuals and associations in this republic. We must address issues of propriety as members of a free society."
On May 7, 2002, at Syracuse University in New York, a fraternity member attended graduation costume parties at several local bars dressed as golf celebrity Tiger Woods. For wearing his costume, the student faced disciplinary charges of harassment and disorderly conduct.
Chancellor Kenneth A. Shaw released a statement declaring that the fraternity to which the student belonged, Sigma Alpha Epsilon, "has been interimly [sic] suspended" and that "action has been taken" against the student. Offended students presented Chancellor Shaw with a list of twelve "demands," including expulsion of the student, "diversity and anti-racism training…for all students, faculty, staff, and public safety officers," "suspension of Sigma Alpha Epsilon and its members," and a redefinition of Syracuse’s "policy on ‘bias-related incidents’ and ‘hate crimes.’" Another demand stipulated that violation of this policy must result in "expulsion," and that organizations in violation should "be fined at least $25,000." Chancellor Shaw stated that his administration "is amenable to developing a reporting system that includes…bias-related incidents as defined by University policy."
University of Louisville
In October 2001, at the University of Louisville in Kentucky, several members of Tau Kappa Epsilon (TKE) attended an off-campus Halloween party. Four of the students wore black face paint to dress as characters such as Snoop Dogg, and the film character Shaft.
Another fraternity member, who is black, wore a white sheet and came in a Ku Klux Klan costume, which he later burned at the party. The fraternity was tried as a collectivity for the off-campus costumes of several members, and it was found guilty of conduct that "seriously alarms, intimidates or harasses others and serves no legitimate purpose." The hearing panel that tried the fraternity found that one student "admitted to using slang" and that another student "was reported to have used slang." (The "slang" admitted was, "Don’t you be getting fresh with my women.") Provost Carol Garrison issued a suspension of TKE activities until mid-May, 2002, and ordered members of that fraternity to undergo a series of reform-oriented "educational" sessions.
On February 16, 2001, several members of the Dartmouth College chapter of Psi Upsilon (Psi U) stood on the front lawn of their house chanting the "wah-hoo-wah" cheer (a traditional cheer at Dartmouth College and at the University of Virginia).
A female student passing by mockingly and hostilely shouted, "Why is Psi U so cool," to which one fraternity member replied, "Why are you so fat?" The Greek Judiciary Council (JC) at Dartmouth found the fraternity guilty of sexual harassment (for the comment to the female student) and racial harassment (for the cheer, which it deemed offensive to Native Americans). The JC recommended thought reform for the fraternity, which the College termed "educational sanctions." To this, Dean of Residential Life Martin Redman added two terms of probation because the original punishment did not sufficiently address "issues of harassment or victimization." The student government at Dartmouth (showing greater appreciation for free speech than a high administrator) passed a resolution criticizing Redman’s decision, and Psi U appealed the punishment. The appeal was considered by Dean Redman himself, who unsurprisingly upheld his original punishment.
University of Mississippi
In fall 2001, at a Halloween party at the University of Mississippi, a student member of Alpha Tau Omega (ATO) dressed in a police uniform and pointed a toy gun at another member, who was dressed in overalls, had painted his face black, and was wearing a straw hat.
Calling the incident "outrageous and totally unacceptable behavior" that "will not be tolerated," the University suspended the fraternity for a year. The University itself has not punished any students directly, but administrators decreed that all Greek students must undergo thought reform in the guise of sensitivity training.
In the fall of 2001 at Auburn University, a public university in Alabama, thirteen members of Beta Theta Pi, in an apparent spoof of another fraternity, Omega Psi Phi (the oldest black fraternity on campus), attended Halloween parties in blackface, do-rags, and Afro wigs, wearing the letters of Omega Psi Phi.
At another Halloween event, two members of Delta Sigma Phi dressed respectively as a member of the Ku Klux Klan and as a black man with a noose around his neck.
Auburn’s Vice President for Student Affairs W. Wesley Williams, citing the University’s manifestly unconstitutional restrictions on speech, warned, "The [Auburn harassment] policy includes a broad definition of harassment, including but not limited to ‘slurs, jokes or other graphic or physical conduct related to a student’s race, color, sex, religion, national origin, age, or physical or mental ability.’"
The University disbanded both fraternities and suspended the fifteen students, claiming that their presence on campus posed an "immediate threat to the well being of the University." Ten students filed suit in state court. On November 21, 2001, a Lee County Circuit Court judge ruled that Auburn had violated its own rules of fairness and required the school to readmit the students. Those students sued Auburn for $300 million for violating their First and Fourteenth Amendment rights. On May 15, 2002, the University settled out of court, and agreed to allow the fraternity and its members back on campus.
These issues ought to have been settled in 1993, when Victor Glasberg, an ACLU attorney, represented fraternity members at George Mason University (GMU) in Virginia. In April 1991, Sigma Chi fraternity had held an "ugly woman contest" as a charity event. Fraternity members, to quote from the appellate decision, dressed "as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman." GMU, claiming that the event had "created a hostile environment for women and blacks, incompatible with the University’s mission," punished the fraternity with suspension, probation, and "an educational program addressing cultural differences, diversity, and the concerns of women." On May 10, 1993, upholding a federal district court decision, the federal Court of Appeals for the Fourth Circuit affirmed the rights of the fraternity by calling its event "inherently expressive and thus entitled to First Amendment protection." The Court noted that the fraternity had been punished precisely for its "evident…message." The fraternity had a clear constitutional right to expression "intended to impart a message that the University’s concerns, in the Fraternity’s views, should be treated humorously." The Court ruled that the harm came not from the fraternity’s expression, but from George Mason’s "punishment of those who scoffed at its goals [and its] permitting, even encouraging, conduct that would further the viewpoint expressed in the University’s goals." In short, the citizens of a free country live with freedom of expression and in circumstances of legal equality in matters of expression.
Friends of liberty often find expressive acts—across the full spectrum of politics and beliefs—outrageous or in bad taste, but they understand that free people do not abandon the Constitution or freedom of expression when faced with the bigot, provocateur, or satirist. As the federal Court of Appeals for the Fourth Circuit ruled in the case of George Mason University, if universities or administrators hold a view of appropriate relations between races and sexes, individuals and groups have the right to ridicule such views. Boorishness is a vice, not a crime. The assault on freedom of speech and association on college campuses underscores the continuing infantilization of students. In case after case, administrators act under the patronizing, racist, and misogynistic assumption that women, blacks, and native peoples—individuals who have struggled so magnificently and fiercely for liberty and legal equality—are too weak to live with the Bill of Rights and its values. No one who tells groups of students that they are too weak to live with freedom is their friend. To cherish freedom and equality before the law is not to approve of all or even of most of the uses individuals make of that freedom. It is to cherish liberty, with all of its perils, as a way of being human.
The actions of university administrators who seek to repress speech deny things that should be self evident: the indispensability of freedom to learning; the dignity and strength of meeting speech that one abhors with further speech, with reason, with evidence, and with moral outrage; the obligation of free individuals to find deep and creative alternatives to the coercive suppression of prejudiced or ignorant expression. Sunlight, as Justice Brandeis correctly observed, is the best disinfectant.
Thor L. Halvorssen, FIRE: 215-717-3473; firstname.lastname@example.org
University of Georgia:
Richard H. Mullendore, Vice President for Student Affairs: 706-542-3564; email@example.com
Claudia Shamp, Associate Dean of Students for Greek Life: 706-542-4609; firstname.lastname@example.org
University of Tennessee:
John W. Shumaker, President: 865-974-2241; email@example.com
Loren Crabtree, Vice President and Provost: 865-974-3265; firstname.lastname@example.org
Bryan F. Coker, Director of Student Judicial Affairs: 865-974-3171; email@example.com
University of Louisville:
James D. Ramsey, Acting President: 502-852-5420; firstname.lastname@example.org
Shirley C. Willihnganz, Acting University Provost: 502-852-6153; email@example.com
James Wright, President: 603-646-2223; firstname.lastname@example.org
Martin Redman, Dean of Residential Life: 603-646-2399; email@example.com
Kenneth A. Shaw, Chancellor: 315-443-2235; firstname.lastname@example.org
William F. Walker, President: 334-844-4650; email@example.com
W. Wesley Williams, Vice President for Student Affairs: 334-844-5810; firstname.lastname@example.org
University of Mississippi:
Robert Khayat, Chancellor: 662-915-7111; email@example.com
Thomas D. Wallace, Acting Vice Chancellor for Student Life: 662-915-5050; firstname.lastname@example.org