Public university disciplines fraternity for having blackface in a skit

[Eugene Volokh]

        Fair enough -- I leave it to others on the list to decide whether they find
more appealing the clearer rule that I suggest, or instead prefer a more
contextual balancing test that lets public universities punish incivility by
students outside class, even when the incivility is political (e.g.,
"unpatriotic remarks").

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Barksdale, Yvette
> Sent: Wednesday, November 07, 2001 12:43 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Public university disciplines fraternity for having
> blackface in a skit
>
>
> 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?)
> >
>