Public university disciplines fraternity for having blackface in a skit

[Barksdale, Yvette]

Hi eugene

you ask:

> Yvette, do you think that a university may constitutionally punish
> students for outside-class unpatriotic statements -- or at least ones that
> are seen as rudely unpatriotic rather than politely so -- on the theory
> that
> its "educational mission include[s] training students to be [good and
> loyal]
> members of [U.S.] civil society, which certainly would include learning
> when
> to exercise self-discipline and restraint with respect to the bounds of
> taste regarding public remarks [and the boundary between constructive
> criticism of one's country and disloyalty to that country in time of war"?
>
>
I wouldn't impose a clear rule - I think, for example,  that the context  in
which the unpatriotic remarks were made is importamt , along with the
university's rationale for the discipline.

For example, is the context  one in which the university ordinarily allows a
robust, vigourous, freewheeling exchange of ideas (campus forum on war on
terrorism), or one in which the university usually imposes strong standards
of decorum,  (relations with rooms - e.g. prohibiting student from hanging
desecrated flag in dorm room of roommate who lost relative in WTC) .

Is the university's rationale educational (e.g., teaching judgment and
respect for others, ex. is September 11th the appropriate day upon which to
make flippant remarks about the pentagon (analagoe -  time place and manner
regulation )  or pretextual  (the University president is a republican and
doesn't want Bush to be criticized ) ?

 I think  both the healy and papish cases which you cite can be explained on
these grounds, rather than by a blanket rule preventing universities from
imposing civility norms on campus speech 1) Both involve  speech in contexts
ordinarily open to broad array of viewpoints and perspectivies -(ex healy in
which the university barred student organization (SDS) from registering as a
campus organization, and  papish which involved student distribution of off
campus SDS newspaper which contained unpatriotic front page cartoon - papish
is trickier here because the paper was distributed near a war memorial - but
again - schools  doesn't normally screen such fliers - why here?);  2) both
involve a strong implication that the universities' implicit motives were
anti -SDS rather than pro-civility .  (again  - papish is somewhat more
difficult here because of the distribution of a cartoon showing the rape of
the statue of liberty near a war memorial , but given the era (student
vietnam war protests ), the school's civility rationale seems thin, doesn't
it?.

I'm not sure where I would place the fraternity skit.  For example,  if this
fraternity revue was similar
to many such campus jokefests - bad taste is part of the fun - accordingly,
it is not clear to me why the school could single out this silly skit for
punishment simply because  a white student tried to look the part of the
african-american figure he was caricaturing (charles barkely). Why is this
worse than all the other examples of bad taste which likely occured on that
night?  For example, I can imagine a black fraternity doing a caricature of
bush in whiteface. So What? Similarly with unpatriotric references. These
fraternity skits are really free for alls. Perhaps there is more back story
here (ex. a history of racially offensive conduct by this fraternity, or a
viciously racially derogatory caricature (exaggerated red lips, "Topsy"
hair etc. ))  Also,  the university sanction so far seems rather mild - go
to diversity classes, (but university is apparently contemplating dismissal
of fraternity from school approval -that sanction, I think would, absent
more extreme facts, far exceed any legitimate university interest in
educating students on civil behaviour)

I don't think I buy your inclass-out of class distinction, because I think
the university's educational mission, particularly in undergraduate
education,  has to extend beyond the simple transmision of information in
class. Why are classes so special? For example, extracurricular activities
are part of an undergraduate educational process, as are dorm activities
etc.,  These contexts in particular are ones in which the university's
civility interest is strongest because it is where students are learning to
live with others.  I might see your distinction for off-campus activites
which are not sponsored by the school, or are unrelated to student's
education - (example - vacations back home - maybe this is also papish -
simple on-campus distribution of off-campus newspapers).   But school
sponsored activities such as fraternities I think have to be fair game.

sorry for being so long winded - but  5 hours of class today have basically
zapped my brain - particularly the edit function)

yb





*********************************************
Professor Yvette M. Barksdale
Associate Professor of Law
The  John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:)  7barksda at jmls.edu
*****************************************************


> ----------
> From:         Eugene Volokh[SMTP:volokh at mail.law.ucla.edu]
> Reply To:     Discussion list for con law professors
> Sent:         Tuesday, November 06, 2001 4:50 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Public university disciplines fraternity for having
> blackface in a skit
>
>         1)  I do not think that a public university may discipline a
> faculty member
> for outside-class speech, whether it's allegedly unpatriotic, racist,
> religiously intolerant, or what have you.  Nor do I think that a public
> university may discipline students for such outside-class speech.
>
>         2)  I do think that a public university has more power, despite
> the 1st Am,
> to control what a professor -- who is hired to speak to students in class
> --
> says to students in class.  I'm not 100% positive about the boundaries of
> this, but at least it can require the professor to be polite, to cover
> certain substantive areas, and possibly even to express certain viewpoints
> (e.g., humans evolved from other animals, the Earth is flat, the Holocaust
> was morally wrong) and not others *in class*.  Such requirements may
> violate
> academic freedom, but I don't think they'd violate the 1st Am.
>
>         3)  I think the university also has some more power, though I
> suspect
> narrower power, to control what students themselves say in class.  It may
> at
> least allow professors to mark students down for responses that they think
> are foolish, where class participation is part of the grade, or for exam
> answers that express viewpoints that the university or the professor
> believes are wrong.  It may also allow professors to cut students off when
> they are rude or off-topic or rambling or what have you, and to eject
> students from class (and possibly punish them further) if the students
> continue to do this after being cut off.  But again this power, I think,
> can
> extend only to in-class comments.
>
>         4)  I do not think that a university may accomplish its mission,
> no matter
> how noble, by punishing students for whatever they say outside class;
> this,
> it seems to me, is the principle of Healy v. James, Papish v. Board of
> Curators, and the various lower-court cases since then.  I think that the
> university's power vis-a-vis its students might actually be less than its
> power vis-a-vis its employees, compare Healy and Papish with Pickering,
> Connick, et al.  But I think that in any event, as to either unpatriotic
> comments or skits in blackface, the university generally may not punish
> either group (cf., e.g., Levin [2nd Cir.]).
>
>         5)  Yvette, do you think that a university may constitutionally
> punish
> students for outside-class unpatriotic statements -- or at least ones that
> are seen as rudely unpatriotic rather than politely so -- on the theory
> that
> its "educational mission include[s] training students to be [good and
> loyal]
> members of [U.S.] civil society, which certainly would include learning
> when
> to exercise self-discipline and restraint with respect to the bounds of
> taste regarding public remarks [and the boundary between constructive
> criticism of
> one's country and disloyalty to that country in time of war"?  I don't
> think
> that's so; but it seems to me that if universities can suppress allegedly
> racist speech on the grounds that it's uncivil and therefore contrary to
> the
> university's "educational mission," they can equally suppress unpatriotic
> speech on the grounds that it's either uncivil (in certain situations) or
> more broadly immoral and therefore contrary to the university's
> "educational
> mission."
>
>         Eugene
>
> > -----Original Message-----
> > From: Discussion list for con law professors
> > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Barksdale, Yvette
> > Sent: Tuesday, November 06, 2001 5:20 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Public university disciplines fraternity for having
> > blackface in a skit
> >
> >
> > hi eugene,
> >
> > how do you reconcile your conclusion that university discipline of a
> > fraternity chapter is unconstitutional, with your previous position that
> > university discipline of faculty members for unpatriotic comments
> > (e.g., the
> > faculty member joke about the pentagon bombing) would be permissible?
> >
> > Is the distinction simply the employee/student distinction? Why
> > doesn't the
> > university's  educational mission include training  students to be civil
> > members of civil society, which certainly would include learning when to
> > exercise self-discipline and restraint with respect to the bounds of
> taste
> > regarding public remarks? If so, then why would the first
> > amendment prohibit
> > it from disciplining this fraternity, as part of its educational
> training
> > (which necessarily involves value choices with which some students might
> > disagree?)
>