A fraternity and sorority decided to throw a party, already a problematic act of oppression from gender-restricted organizations who would likely serve alcoholic beverages that could lead to rampant rape and sexual assault. But they didn’t stop there.
The local chapter of Sigma Phi Epsilon and the sorority Alpha Phi co-hosted the “Kanye Western”-themed party Tuesday night, with costumes playing off Kanye West and his wife, Kim Kardashian, the Daily Bruin reported.
Surely, this would offend, and it did.
Leaders of student groups, such as the Afrikan Student Union, demanded a response from the university, noting the party was held during “Black Bruin Welcome Week.”
So UCLA, a public university, did what any “right-thinking” school would do under the current climate of eliminating the harm and hurtfulness of offense from their campus.
In the meantime, both Greek organizations allegedly involved have been placed on immediate interim suspension of all social activities pending the outcome of an investigation. While we do not yet have all the facts, the alleged behavior is inconsistent with good judgment as well as our principles of community. We remind students that while they are free to celebrate in ways that draw on popular culture, their specific choices can cause harm and pain to fellow members of their community. Put simply: Just because you can do something does not mean you should.
This put one of the First Amendment’s best friends in an awkward position. Eugene Volokh teaches at UCLA law school, and the administration that signs his paychecks just suspended student organizations for expressive speech. What to do?
[T]he suspension of the fraternity and sorority is likely unconstitutional. 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.
In an abundance of fairness to his school, he inquired, to find out whether there was any behavior that justified the suspensions beyond what was published.
And when I asked the administration, the response didn’t point to any such misbehavior. As best I can tell, this is a punishment purely based on the allegedly racially offensive content of the fraternity and sorority’s expression — and the message sent to other organizations is that, if you express views (jocularly or seriously) that are seen as racially offensive, you too may be suspended. And such a punishment violates the First Amendment.
That the administration took immediate, and unconstitutional, action to pacify the offended on campus was just the start. Next up came the requisite student outrage, along with its demands:
What transpired was not an isolated incident … but a product of a university culture of discriminatory attitudes against black students. …
[T]he board calls on FSR [Facilities Service Request] to take immediate steps to ensure an incident like this isn’t hosted by an officially recognized on-campus organization again.
Is UCLA a hotbed of racial discrimination? Within the context of college sensitivity, who knows? But clearly, this party crossed someone’s line, and so must be stopped.
FSR’s attempts to police Greek life organizations by requiring them to turn in paperwork a week prior to the date of an event are inadequate. An alumni adviser and chapter president must both sign off on the form which includes the theme, but FSR clearly doesn’t hold Greek life organizations accountable to what they fill out on these official documents.
An open call to “police” party themes for political correctness? Eugene states the obvious:
But between calls for “policing” of expression at social events, suspension of fraternities for their speech, and proposals to recognize a “right to … [be] free from acts and expressions of intolerance,” things aren’t looking good for the First Amendment here.
Was a booze party by sexist organizations with the Kanye Western theme in poor taste? It’s irrelevant, no matter how offensive you feel it may be. Heck, I’m offended that Kim Kardashian is on TV, but my solution is not to watch. That it has become firmly embedded in campus mythology that insensitive speech, under any of its various permutations, hate, offensive, racist, sexist, any other -ist, is subject to censure has reached a point where it’s accepted as an immutable truth.
To begin with, there are absolutely exceptions to free speech – legal exceptions, in fact which include: child pornography, incitement, sexual obscenity without literary, artistic, political or scientific value and “fighting words and offensive speech.” And no, this is not a “slippery slope;” these are rules that have always been here and should always stay here, for good reason.
Notice how “offensive speech” managed to find its way onto the list? So what is a First Amendment scholar to do? More importantly, what is he to do when it manifests in a call for the unconstitutional “policing” of speech on his own campus?
One of the questions that has long concerned lawyers is when academics would get pushed far enough, hard enough, to shed their concerns over student backlash by calling out the campus speech myth that offensive speech is not free speech. There was fear that they would be targeted as racist, sexist, all the -ists that are intolerable in an academic environment. Who needed such a taint to their careers?
Eugene Volokh was put in an awkward situation by his own school, by its administration and its students. He could have hidden from the issue, claiming a conflict of interest and leaving it to someone else to address, but he didn’t. He called out this attack on free speech, risking his reputation and student evaluations. Not only the administration’s actions, but the students’ demand to police speech on campus.
This is what intellectual honesty looks like, taking the risk of ad hominem attack rather than sit silently as lies are perpetrated. The contrast between a scholar willing to put himself on the line for integrity, particularly in contrast to petty academics who shamelessly deceive to promote causes popular with the police children, could not be more clear. Perhaps this will inspire other academics to stand up and put an end to the campus myth that offensive speech must be silenced.
Update: Josh Blackman reminds us of why we bother with these children.
I pay very close attention to what today’s college students think and do, because today’s college students will becomes tomorrow’s law students, the next decade’s lawyers, and the next generation’s politicians and judges. With respect to the First Amendment, I don’t pretend for a moment that today’s prevailing views of free speech and free exercise will remain constant. (See my article Collective Liberty for a discussion of how these trends will continue). Recent events at UCLA provide a microcosm of how the next generation is being inculcated with a very bizarre and dangerous conception of free speech).
We can laugh about it now (stupid, kidz), but it won’t be funny when they’re wearing robes.