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Monday, April 06, 2015

University of South Carolina joins the mob

There may be more to this story than is reported here about the University of South Carolina suspending a student for writing a racial slur on a dry-erase board in a study room (as part of a list of complaints about the school). Based on the facts we have, this move is even more egregious than the expulsions at Oklahoma. The Fourth Circuit does not apply Tinker to universities; there is no remote possibility of this being a true threat, fighting words, incitement, or otherwise unprotected speech; and there is no suggestion that using the dry-erase boards in a study room is against university policies (so this cannot be likened to defacing university property). The school simply insists that "racism and incivility" are not tolerated and that the honor code requires everyone to "respect the dignity of all persons" and to "discourage bigotry." Those are all great ideas. But an institution that is subject to the First Amendment cannot further those values by removing from its community anyone who does not share them.

Again, however, if the student is not inclined to sue, the university's power grows.

Posted by Howard Wasserman on April 6, 2015 at 04:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

JD,

Universities have a perfectly fine way of dealing with reprehensible speech: they can teach critical thinking in their classes.

Posted by: Derek Tokaz | Apr 8, 2015 3:29:21 PM

Ahh ok. Wasn't sure if she left it there or whether it was written, photographed, and erased before leaving. If the latter, your point 5 above is well-taken.

Personally, I find this discussion fascinating. On an emotional level, it strikes me that a university would have its hands tied in these recent "racial epithet" cases and there's got to be some better way to allow them to deal appropriately with reprehensible speech. On the other hand, to paraphrase the Chief Justice, we already have something to deal with it: it's called the First Amendment.

Posted by: JD | Apr 8, 2015 2:51:39 PM

I could imagine a meaningful punishment for a student who repeatedly used a board in a study room to post, e.g., frat party fliers, or to draw large colorful advertisements for upcoming frat parties with dry-erase markers. And that wouldn't be viewpoint-discriminatory. But yes, generally there wouldn't be meaningful punishments for infractions, and more importantly no one's said that that's what this suspension was about.

I guess my larger quibble with this post and comments is that doctrine in this area isn't static. I understand a lot of people wish it were because existing doctrine is very speech-protective, and some people like that. However, the school is free to argue (if sued) that Tinker should expand to college campuses; I don't think the Fourth Circuit's foreclosed that, and nor has the Supreme Court, some very vague and mixed dicta in cases like Healy notwithstanding. And I think the school could reasonably argue that, in assessing whether speech of this nature is likely to cause a substantial disruption, the extent to which racist speech of any kind is likely to engender protest on college campuses today makes reactions like these appropriate. I think the school can also point out the recent examples of violent anti-racist protest in the news. Similarly, I think the school could argue that Bethel isn't and shouldn't be cabined to high school, or to lewd speech, which perhaps isn't so easily distinguishable from the use of racist epithets (as opposed to racist speech more generally). Given the membership of the current Court and Alito's concurring opinion in Morse, I tend to doubt that arguments of this kind would succeed if and when a college racist speech case reaches the Court, but that doesn't mean they won't ever succeed in lower courts. It would be strange to me if the pretty overwhelming public and elite sentiment in favor of punishing college students that engage in racist speech didn't take hold to at least some extent in the judiciary.

Posted by: Asher | Apr 8, 2015 2:49:12 PM

Howard,

The bigger issue with the "study purposes only" rule is that no school would suspend a student for using a study room for non-study purposes. The punishment would be on par with talking in a silent portion of the library, or bringing food into a room where food isn't allowed. If the punishment is more harsh than the norm for similar infractions, we're immediately back into viewpoint discrimination territory.

Posted by: Derek Tokaz | Apr 8, 2015 2:06:20 PM

Well, I doubt publicly directed speech is necessarily a problem. The First Amendment protects more than me talking (or writing) to myself. In any event, she didn't leave it on the board to be seen by future users--it was seen because someone took a photograph.

The school probably could limit the forum to "study purposes only," although I am not sure how that restriction gets meaningfully enforced.

Posted by: Howard Wasserman | Apr 8, 2015 1:48:35 PM

I think the condition the commenter immediately above describes is okay, but it's not a viewpoint-discriminatory condition. Praise for the administration (this epithet was used in some sort of grievance against the administration) or anti-racist commentary would also fall afoul of it.

Posted by: Asher | Apr 8, 2015 12:55:14 PM

Hi Howard - two brief responses to your points 5 and 7 above. As to 5, I'm not sure it's as close to private speech as you would argue. It may have been written in a room, while alone, and (at that time) closed off to the public, but the room is (to my knowledge) one shared by and accessible to the public. And leaving your written work on the board directs that speech to anyone else who will later use the room. In one's dorm room, there are privacy expectations that are seemingly absent here. As to 7, what if the school conditioned use of the study rooms on an academic purpose? Something to the general effect of "These rooms may be used for study purposes only." And, just for fun, lets say that when this student checked out the room, they indicated that they were using it to study for physics. Would that change anything in your mind?

Posted by: JD | Apr 8, 2015 12:49:41 PM

There's no room on a campus for people who would threaten others with racial hate (or hate based on gender, religion, sexual orientation, etc). Maybe this makes me a bad American, but I find it hard to work up concern about this kind of thing on a college campus where young people are still developing.

Posted by: anon | Apr 8, 2015 12:30:40 PM

Well "tedious" and "rubs me the wrong way" are not exactly substantive engagement. But let's look at the substance of current First Amendment doctrine and your comments.

1) What a television station can or cannot do is irrelevant to this issue. Broadcast television is subject to different limits (owing to a nonsense combination of scarcity, pervasiveness, and access by children) that have never been extended to any other electronic medium, much less to a live forum. Oh, and racial slurs are not indecent as that term is defined, so a broadcaster would not be in legal trouble with the FCC for allowing them to be uttered at any time of idea.

2) This is not fighting words as that doctrine is currently understood. Fighting words requires a slur spoken in an in-person, up-close, face-to-face encounter, with the slur directed at that person. A slur uttered to the entire world, not in that face-to-face context does not qualify.

3) Bethel is still a school case. And it turns almost entirely on the audience being comprised of young people who should be protected from sexual innuendo. The case has no application to a college.

4) "Treated the same" means the First Amendment draws no distinction between two different types of statements. That is, the First Amendment draws no distinction between reasoned statements and statements containing epithets. "Fuck the draft" receives the same degree of protection as "the draft is unwise." "N---s are what's wrong with this school" (which is functionally what the student wrote on the board here) receives the same degree of protection as "Blacks are what's wrong with this school" or "People of African descent are what's wrong with this school."

5) Oddly, the speech here actually was somewhat private. The student was writing on the board in a closed room. She got in trouble when a photograph of her next to the board was circulated (I don't know by whom or if it is known by whom). So this is a lot closer to someone overhearing what was going on in a closed dorm room.

6) I tend to doubt this is just about the slur itself. If the student had written "Blacks are what's wrong with this school," she would still be in trouble.

7) A school cannot condition access to facilities in a viewpoint-discriminatory way, regardless of how the forum is defined. Saying you can use the rooms only for discussions that are respectful of others and that oppose bigotry is pretty clear viewpoint discrimination that current First Amendment doctrine does not allow.

Posted by: Howard Wasserman | Apr 8, 2015 1:18:04 AM

I substantively engaged but honestly added that I don't think the replies are fully responsive. Others in effect have did the same thing by some of their comments. The last reply was dismissive and not helpful in changing my mind.

Asher, I am not trying to defend the suspension as such, especially after one incident. I'm just getting a bit concerned about some of the rhetoric. Talk about "mobs" silencing expression of ideas by preventing use of slurs on dry erase boards in public study halls or how chants about having sex with dead prostitutes are like Taylor Swift songs (to cite another person's comment). Free speech can be protected while have some perspective of what exactly is going on.

JHW's comment to me is a bit questioning of what is at stake here. I don't think we have to apply Tinker to colleges. It is not some broad "disruption" thing. I thought that perhaps the better case to cite is the Bethel v. Fraser case, including when hoping people would sue to protect free speech rights. Seems more apt to flag that than a case about an armband to protest Vietnam.

If even a rule setting for basic rules of respect in a limited case of a public study hall (as compared to if a student speaks in the dorm or other more private area) so that you can't, e.g., write "n----" on the board -- which I apologize is not simply treated the same in 1a case law as "I find black people inferior" etc. -- fine.

I STILL think the rhetoric being used here is overblown.

Posted by: Joe | Apr 8, 2015 12:39:32 AM

I'd like what this school did to be constitutional, but Joe, I think you should just take Professor Wasserman's word for it that, absent an expansion of Tinker to college (which I believe the Fourth Circuit hasn't addressed one way or another), this speech was protected, and that the suspension certainly isn't defensible on some limited forum or t/p/m ground. I do think the school could adopt a viewpoint-neutral but highly content-sensitive rule to the effect that study boards could only be used for study-related matter. Such a rule, though, wasn’t the basis for this suspension.

Posted by: Asher | Apr 7, 2015 5:36:28 PM

If you find the conversation tedious, there is a very obvious remedy.

Posted by: Howard Wasserman | Apr 7, 2015 1:40:05 PM

This conversation is getting as tedious as the one about Alabama.

What does "treated the same" mean? Do television stations get the "same" right to say them at noon? Is use of certain words in no more less likely to be deemed a "fighting word" as compared to saying the general idea in politer terms? Will people in courtrooms or other places have the "same" right to say them. No. They do not. We don't treat them exactly the same.

Why a study hall should not generally be the same as a legislative debate is unclear to me as a matter of general respect of fellow patrons. At least, if we talk about "mobs" here, there is something of a finer line. But, I'll give it up. Your framing and at times tone rubs me the wrong way. This might be obvious, but that at some point is probably wrong to assume.

Posted by: Joe | Apr 7, 2015 12:32:08 PM

Calling something a "racial slur" (as distinct from "I don't like black people" gets us nowhere, since both are treated the same under the First Amendment. Agreed the study room is "designated for certain functions." But I don't see how we make the leap to those certain functions necessarily entailing basic respect to fellow members. Legislative debate is not the default analogue, nor should it be.

Posted by: Howard Wasserman | Apr 7, 2015 11:57:56 AM

When we say the university is "joining the mob," resting on some open-ended right to write racial slurs on dry erase boards in study rooms might just be at tad much.

The "content" to be clear is not merely "I don't like black people," but a racial slur. Not allowing students during class discussion to use racial slurs is not allowed, I gather too? I question this. The study room is not merely an open forum like a park. It is designated for a certain function, which entails basic respect to fellow members akin to not using disparaging terms during a legislative debate.

Posted by: Joe | Apr 7, 2015 11:50:29 AM

If I had to make the argument, I would say a designated public forum for the student permissibly using the room. Just as she can read whatever (protected) material she wants, so she can she write what she wants on the board for the time she is properly using the room.

Posted by: Howard Wasserman | Apr 7, 2015 11:23:20 AM

What kind of forum is a dry-erase board at a public university?

Posted by: JHW | Apr 7, 2015 11:17:42 AM

T/P/M restrictions have to be content-neutral. The only thing "disappointing" in the study room was the content of what she wrote, which failed to show the respect demanded by the code of conduct.

Posted by: Howard Wasserman | Apr 6, 2015 11:39:40 PM

It is not merely that the student did not "share" the views when something was "written in a campus study room" here. If we are going to talk about the "mob" here (a rather disparaging comment, but hey, you are protected in so using it), perhaps we can be specific about what is happening.

I take it is some sort of public forum where racist speech is allowed, or so is the argument, but "disappointing act of a student in a study room" sounds like it might be a time/place/manner concern. The student didn't voice it in a personal conversation, but in a certain manner. The ideas are not "removed" from the "community" here. It can be expressed various ways if you don't post it on a study room whiteboard.

Likewise, if racial slurs are not allowed on dorm bulletin boards, it would not quite be "mob" action that threatens 1A speech. The open-ended remarks by the university on how such language "has no place" is troubling. But, the specific example is pretty telling. I'm sure people use slurs in dorms w/o being suspended.

Posted by: Joe | Apr 6, 2015 8:36:02 PM

Kudos to the university. Civility needs to trump those who wish to hide behind the 1st Amendment to advance their hatred and bigotry.

Posted by: CLO & ex law prof | Apr 6, 2015 7:09:00 PM

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