Another System-wide Suspension

Tim Burke, Manley Burke, tburke@manleyburke.com

Recently, more than two dozen colleges and universities, both state and private schools, have imposed system-wide suspensions on their fraternities and sororities.  Some of those suspensions have been imposed following tragic deaths that never should have happened.  For other suspensions, there are less understandable justifications.

The problem with all of these suspensions is that rather than target those individuals who broke the rules of their own organizations, the regulations of the university and frequently the criminal laws of the state, such system-wide suspensions deprive even those individuals and groups that have acted responsibly and fully complied with rules, regulations and the law of their rights to freedom of speech and association.

Make no mistake, it is perfectly appropriate for a university to discipline, perhaps even expel, a student who violates rules, especially if the misconduct harms others, provided that some form of fair due process is provided, affording the student the opportunity to present a defense.  What is wrong with the system-wide suspensions is that they punish students who did nothing wrong.  Would a university prohibit all those living in a particular dorm from meeting, or participating on an intramural team, because a student living on the fifth floor engaged in an act of misconduct that harmed others?  Of course not.

Lifting such suspensions is sometimes conditioned upon agreeing to mandates or limitations which have no relationship to the reason for which the suspensions were imposed to begin with.  Universities may also attempt to enforce unconstitutional demands violating equal protection rights or freedom from unreasonable searches.

A particularly egregious and unjustified suspension of an entire Greek system occurred this spring at California Polytechnic State University (Cal Poly).  There, a member of one fraternity put on blackface and a photo of that showed up on social media.  Shortly afterwards, the university administration learned that at another private event, not sponsored by any fraternity or sorority, two or three members of a fraternity dressed as members of a Hispanic gang.  A photo of that too showed up on social media.  There was a significant negative reaction to the social media pictures that were widely circulated, some referred to the photos as evidence of “cultural appropriation.”  The university president, James D. Armstrong, described the conduct photographed as racist.  However, he also recognized that:

While this may anger and frustrate many, the laws governing constitutional rights to free speech are unambiguous and unequivocal.  The First Amendment protects the free speech of everyone on our campus, and the university cannot sanction any campus community member or visitor who is legally expressing their views – even if we as a university find those views to be disgusting, racist, sexist, homophobic, or in any other way contradict our values.  There are times when values conflict – when we are torn between a duty to oppose hate and a duty to protect free speech.  As individuals, each of us can choose which value to put first, but as a state university, the law makes that choice for us.  We cannot ban hurtful speech and expression on campus, we can only overcome it.

That much of the university president’s statement was absolutely correct, but in the same communication, he also said:

I am announcing today an indefinite suspension of all Panhellenic and Interfraternity Council fraternities and sororities.  I understand this impacts Greek Life organizations that have been operating responsibly and with integrity.  However, Greek Life is a privilege at this university, and until all fraternities and sororities are conducting themselves in a manner that is respectful of all students – as well as holding each other accountable – they will not have a place at Cal Poly.

There, President Armstrong erred.  The state university had no ability to discipline the individuals for their speech.  Yes, costumes are legally determined to be speech.  But, the university also had no right to interfere with the First Amendment freedom of speech and freedom of association of those members of Greek groups that had nothing to do with the offensive speech.

While Cal Poly has now lifted the suspension for some or all of the groups, that does not make the suspension constitutional.  The Supreme Court recognized in Elrod v. Burns that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

It is important to note that recognizing the inability of a state university to punish individuals who engage in offensive speech does not at all mean that a private social organization, a fraternity or sorority chapter, or the national organization, cannot discipline, suspend or expel members who engage in the “disgusting, racist, sexist, homophobic” speech the president abhorred.  They can and should.

Fraternal Law has written about this issue in the past.  See January 2002, “Klan Costumes in Black Face:  Can Anyone Punish?”, March 2002, “Klan Costumes or Black Face – the Aftermath,” Fraternal Law, January 2003, “Black Face Controversy Redux,” Fraternal Law, September 2003, “Speech Codes Remain Under Attack,” Fraternal Law, September 2004, “Practical Advice for Fraternities Caught in the Battle for Free Speech on Campus,” an article by Greg Lukianoff and Matthew Vasconcellos of the Foundation for Individual Rights in Education (FIRE).