Wise Use of Free Speech

Tim Burke, Manley Burke, tburke@manleyburke.com

Two recent events demonstrate the ability of national fraternities and sororities to deal with conduct that is inappropriate but may not constitutionally be treated as a violation of the policies of state universities.

A few years ago, great controversy surrounded the adoption of politically correct speech codes by universities.  Those were regulations designed to prohibit or punish speech which negatively commented on individuals or groups based upon their sex, color, religion, race, nationality, and other protective classifications.  In each instance, where such regulations were challenged after an attempt by a university to impose discipline, such regulations were found to be unconstitutional violations of freedom of speech.¹

The situation is different, however, when fraternities and sororities choose to respond to such conduct.  Two examples occurred this past fall.

In November, at the University of Southern Mississippi, six members of Phi Mu attended a 1980s themed costume party dressed in black face and curly haired wigs, attempting to depict themselves as the Huxtable family of the Cosby show.  While both Phi Mu and the university conceded that the women had no “ill intent,” as Dean of Students, Eddie Holloway, said, they also “did not understand the historical implication of costuming in black face.”  Chris Bridges, National President of Phi Mu, quickly responded expressing her disappointment.  The national fraternity imposed probation on the women and required them to undergo diversity training and required the chapter to conduct a campus-wide program.

In December, at the University of Vermont, the Sigma Phi Epsilon Chapter was closed by the fraternity after a questionnaire, apparently put together by one of its members, included the question, “who would you like to rape?”  The national fraternity, through Brian Warren, its Executive Director, made it clear that the fraternity “will not tolerate this behavior.”

Both the black face and the “rape” survey may have involved issues of constitutionally, even if inappropriate in the case of the black face and appalling in the case of the rape question, protected speech.  Such protections do in fact limit the ability of state colleges and universities to discipline for such conduct, but constitutional protections do not apply to disciplinary actions or conditions of membership imposed by fraternities and sororities.

Most fraternities and sororities are founded upon high ideals and aspirations, and their rules frequently include broad, though somewhat vague, terms which might be unconstitutional if adopted as law, such as conduct unbecoming a member or conduct which brings disrepute on the organization.  Both the blackface and survey brought embarrassing national publicity focused on the organizations involved, triggering for both groups the need and legal ability to respond.

The law across the country is generally very clear that courts will avoid becoming involved in second guessing the disciplinary decisions of private social organizations so long as in doing so, the organizations have complied with their own rules and procedures.  Private colleges and universities may have the same broad ability but that does not apply to state colleges and universities which are state actors under the law, which must honor the constitutional protections afforded by the first and fourteenth amendments.

Colleges and universities, even private ones, may be better off doing what they do best, educating, rather than trying to punish inappropriate speech.  Northwestern set a good example of that, when in preparation for the 2010 Halloween costume season, its Dean of Students, and the President of Student Government and others, issued a joint letter encouraging its students to recognize the sensibilities of one another and the inappropriateness of ridiculing by costume and speech, the diversity of any elements of the Northwestern community.

In that letter, after discussing why blackface was offensive and urging it not be used, the authors made the point that could be applied much more broadly, that:

“Northwestern is a community that values free expression as well as inclusivity.  And while students, graduate and undergraduate, have the right to express themselves, we would hope the people would actively avoid those circumstances that threaten our sense of community or disrespects, alienates, or ridicules segments of our population based on race, nationality, religious belief or gender.”²

1 See for example, Doe v. University of Michigan, 721 F.Sup. 852 (1989), IotaX Chapter of Sigma Chi v. George Mason University, 993 F.2d 386 (1993) and Fraternal Law “Klan Costumes and Black Face Can Anyone Punish,” January 2002.

2 See gawker.com/5673657/northwestern<students-reminded-no-blackface-this-halloween.