Hostile public accommodations environment and American Indian tea m names

[Volokh, Eugene]

        Note, "A Public Accommodations Challenge to the Use of Indian
Team Names and Mascots in Professional Sports," 112 Harv. L. Rev. 904
(1999), argues that Title II of the Civil Rights Act of 1964 *already*
outlaws the use of American Indian team names ("the Atlanta Braves,
Chicago Blackhawks, Cleveland Indians, Kansas City Chiefs, and
Washington Redskins") and mascots, "because [such] team names and
mascots cause harm and lead to exclusion by maintaining an intimidating
environment."  "Even a seemingly innocuous team name -- like the
Blackhawks -- is as discriminatory as the most obviously offensive team
name -- the Redskins. . . .  Although the racial epithets and imagery
are not specifically directed at an individual patron, the impact is not
thereby lessened and the end result of exclusion is not diminished."

        A ban on such team names and mascots, the Note argues, doesn't
violate the First Amendment, because the team names and mascots are mere
commercial speech and "The elimination of racial discrimination in
places of public accommodation should suffice as a substantial
government interest for the application of Title II to sports team
names."

                Of course, this is just a law review note, but recall
the thread on this list in early February which discussed the U.S.
Department of Justice investigating whether a North Carolina high school
"is promoting a racially hostile [educational] environment
by using a Native American mascot."
http://www.worldnetdaily.com/bluesky_repack/19990205_xrpkg_justice_de.sh
tml (Asheville Tribune story).  If the DoJ finds that the use of the
mascot by a school creates a hostile educational environment, it seems
to me that the argument would work equally well under a hostile public
accommodations environment theory (cf.
http://www.law.ucla.edu/faculty/volokh/harass/pubaccom.htm for more
details on hostile public accommodations environment claims).  On that
thread, some suggested that a ban on that school's use of the mascot was
permissible either because a public high school lacked 1st Am rights
(even against the federal government) or because the ban was a
permissible condition on the use of federal money.  The Title II
argument, whether the government is acting as sovereign, restraining the
speech of private enterprises, would obviously not be subject to these
defenses.

                The beautiful thing about debates on hostile environment
law is that one doesn't have to come up with hypotheticals to make a
slippery slope argument; the slippery slopes are right there in front of
us.  From racial slurs in employment to racist statements in employment
to racial slurs and racist statements in places of public accommodation
to the Washington Redskins as a name of a sports team to the Kansas City
Chiefs as a name of a sports team.  Whole lot of slippin' goin' on.


------------------------------------------------------------------------
----------
Eugene Volokh, UCLA Law School, 405 Hilgard Ave., L.A., CA 90095