Academic Freedom

UW-17

In response to verbal and physical attacks on their increasingly female and multiethnic student bodies in the late 1980s, universities around the country began to consider adopting speech codes designed to punish racist, sexist, or otherwise biased or “hateful” speech. Some campuses decided to reject such codes, but the University of WisconBook Coversin-System, like many others, adopted a rule punished discriminatory student speech. The rule was soon challenged and overturned in federal court, and although it was not the first such case, it was an especially important one, as we shall see when we get to the court’s opinion. First, though, it is helpful to review some of the incidents that caused the Board of Regents to adopt the rule. All these incidents are drawn from Timothy C. Shiell, Campus Hate Speech on Trial (Lawrence: University Press of Kansas, 1998), pp. 22-28, except as noted.

In May of 1987, the Phi Gamma Delta fraternity staged a “ Fiji Island” party in which they, amongst other things, paraded in blackface and tropical garb with a fifteen-foot-tall plywood caricature of a black man with a bone in his nose. When word about the party spread, a number of black students picketed the house, and the fraternity took down the plywood caricature. However, it was put back up the next day. This led to further protests against the fraternity. Asian students joined the protests when the fraternity president clumsily tried to apologize to blacks by saying the caricature was meant to be a Fijian, not a black. The demonstrations continued until the university suspended the fraternity and ordered all its members to undergo “sensitivity training.” University authorities originally intended only to write a condemnation of the display, but were pressured in a closed-door meeting with leaders of the student protest to take this stronger response.

The next fall, Zeta Beta Tau, a predominantly Jewish fraternity, held a closed party. A number of Phi Gamma Delta members, which had only had its suspension lifted the week before, crashed the party and started a fight by making racial and ethnic slurs. Although Phi Gamma Delta officers denied any racial bias and described the incident as “just another after-bars fight,” the university suspended the fraternity once again and the fraternity suspended the five members involved in the fight. However, an independent investigator recommended reversal since the university had not made a determination of whether the fight was conducted in an individual or representative capacity, and thus violated student due process rights. In January of 1988 the university lifted Phi Gamma delta’s suspension, and in February of 1988, concluded that although the racist remarks of the fraternity members was “reprehensible,” it did not violate any student rules and was protected by the First Amendment.

Outraged black and Jewish students were soon calmed when Chancellor Donna Shalala announced the “Madison Plan,” a comprehensive university program designed to improve the condition of minorities on campus. For example, the plan sought to recruit and retain minority students and faculty, and even set targets: double the number of minority students in five years and add over two hundred minority faculty within three years. The plan also created a new ethnic studies course requirement, a multicultural center, and an outreach program to local schools.

Only two months, in April of 1988, the next incident occurred. Professor Harold Scheub was giving an exam in his African Storyteller class when six men burst into the room, shouting obscenities for ten minutes and leaving an exam book with pornographic illustrations. Two hours later, the six men burst into Professor Linda Hunter’s African Languages classroom, set off a stink bomb, and fled. Upon investigation, the six men were found to be members of the University of Illinois chapter of the Acacia fraternity who acted with the help of the local chapter. As punishment, both the University of Illinois and UW-Madison suspended their Acacia chapters, which means they lost university affiliation, access to university facilities and mailing labels, participation in intramural sports, and membership in the Intrafraternity Council. The intruders pleaded no contest to criminal disorderly conduct and unauthorized presence. All six were required to write an essay on the incident or black history or literature, and four were required to donate fifty dollars to charity and perform one hundred hours of community service.

The next month, in May of 1988, the UW-System Board of Regents sought to improve the campus environment for women and minorities by adopting “Design for Diversity,” a system wide program aimed at the same goals as the “Madison Plan.” Moreover, the board created a group to draft additions to UWS Chapter 17 (hereafter, UW-17), the student conduct code, with the help of law professors Gordon Baldwin, Richard Delgado, and Ted Finman.

The next fall, in October of 1988, Zeta Beta Tau, the predominantly Jewish fraternity whose members had been beaten and slurred by Phi Gamma Delta in 1987, put on a “slave auction” in a private residence to raise funds. In one skit, pledges in blackface and afro wigs lip-synched Michael Jackson songs. In another, a pledge impersonated Oprah Winfrey while two others taunted him sexually. A complaint was filed when news of the event leaked out, but a student committee decided that the event broke no campus rule and was protected speech. Two hundred protestors then occupied the administration building in a “day of rage,” and Chancellor Shalala cut a deal to end the siege. Although she refused to expel the students, she did agree to set up a committee to study long-term goals for minority retention and the role of fraternities on campus. Yet the Intrafraternity Council suspended Zeta Beta Tau for five years, and protestors continued to take to the streets as the student association stripped the student committee of authority to hear complaints about racism and sexism.

That summer, June of 1989, in reaction to this sequence of highly-publicized events, the Board of Regents adopted (in a 12 to 5 vote) UWS Chapter 17.06(2), a new rule of the sort called a “hate speech code” authorizing punishment:

(2)(a) For racist or discriminatory comments, epithets, or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets, or other expressive conduct intentionally:

Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and

Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.

(2)(b) Whether the intent required under par. (a) is present shall be determined by consideration of all relevant circumstances.

(2)(c) In order to illustrate the types of conduct which this subsection is designed to cover, these examples are set forth. These examples are not meant to illustrate the only situations or types of conduct intended to be covered.

1. A student would be in violation if:

(a) He or she intentionally made demeaning remarks to an individual based on that person’s ethnicity, such as name calling, racial slurs, or “jokes”; and

(b) His or her purpose in uttering the remarks was to make the educational environment hostile for the person to whom the demeaning remark was addressed.

2. A student would be in violation if:

(a) He or she intentionally placed visual or written material demeaning the race or sex of an individual in that person’s university living quarters or work area; and

(b) His or her purpose was to make the educational environment hostile for that person in whose living quarters or work area the material was placed.

3. A student would be in violation if he or she seriously damaged or destroyed private property of any member of the university community or guest because of that person’s race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age.

4. A student would not be in violation if, during class discussion, he or she expressed a derogatory opinion concerning a racial or ethnic group. There is no violation, since the student’s remark was addressed to the class as a whole, not to a specific individual. Moreover, on the facts stated, there seems no evidence that the student’s purpose was to create a hostile environment.

In addition to this, UW-System issued a brochure explaining the scope and application of the rule through these additional cases:

Question 1: In a class discussion concerning women in the workplace, a male student expresses his belief that women are by nature better equipped to be mothers than executives, and thus should not be employed in upper management positions. Is this statement actionable under UWS 17.06(2)?

Answer: No. The statement is an expression of opinion, contains no epithets, is not directed at any particular individual, and does not, standing alone, evince the requisite intent to demean or create a hostile environment.

Question 2: A student living in the University dormitory continually calls a black student living on his floor “nigger” whenever they pass in the hallway. May the University take action against the name-caller?

Answer. Yes. The word “nigger” an epithet, and is directed specifically at an individual. Its use and continuous repetition demonstrate the required intent on the part of the speaker to demean the individual and create a hostile living environment for him.

Question 3: Two university students become involved in an altercation at an off-campus bar. During the fight one student used a racial epithet to prolong the dispute. May the university invoke a disciplinary action?

Answer: Perhaps. Use of the epithet, and its direction to an individual suggests a potential violation of UWS 17.06(2); however, because the episode occurred off campus, the intent to create a hostile environment for university-related activities would be difficult to demonstrate. Additional facts would have to be developed if disciplinary action were to be pursued.

Question 4: A group of students disrupts a university class shouting discriminatory epithets. Are they subject to disciplinary action under the provisions related to regulating expressive behavior?

Answer: Perhaps. It is clear that the subjects are subject to disciplinary action for disrupting a class under UWS 17.06(1)(c)3. The question is whether they also violated the newly created provision concerning expressive behavior, because they shouted epithets while in the course of misconduct. If the epithets were directed to individuals within the class, and were intended to demean them and create a hostile environment, then the behavior might also be in violation of the provision concerning expressive conduct.

Question 5: A faculty member, in a genetics class discussion, suggests that certain racial groups seem to be genetically pre-disposed to alcoholism. Is this statement subject to discipline under Chapter UW 17?

Answer: No. A faculty member is in no case subject to discipline under Chapter UWS 17, since the Chapter only applies to students. This situation would not warrant disciplinary action under any other policy either, since it is protected expression of an idea.

So there is the rule. How was it applied?

Patricia Hodulik (senior legal counsel for the UW-System at the time):1 The policy was applied in a fair and effective way since it was never enforced in a way that threatened protected speech. Of the thirty-two complaints were filed under the new policy during its eighteen-month life, only ten egregious cases resulted in sanctions. Four examples where the complaint was dropped because the First Amendment protected the expressive conduct include:

1. An art display in a campus gallery offensive to some Catholic students.

2. A student referring to a group of student senators as “rednecks.”

3. A statement by a Libyan student to a Zionist student that Libya would ultimately destroy Zionism.

4. A cartoon on abortion in a student newspaper offensive to some Christian students.

Hodulik continues: Cases in which sanctions were applied include:

1. A UW-Parkside male student entered another student’s bedroom uninvited and used inappropriate language, including a derogatory use of the name “Shakazulu.” He was put on probation, and required to consult with an alcohol abuse counselor and plan a project with the Center for Education in Cultural Enhancement to help sensitize him to the issues of diversity.

2. A UW- Eau Claire male student yelled epithets at a woman for ten minutes, calling her a “fucking bitch” and “fucking cunt” in response to a letter she had written to the university newspaper criticizing the athletic department. He was put on probation and required to perform twenty hours of community service at a shelter for abused women.

3. A UW- Eau Claire male student sent an e-mail message on the university computer system to an Iranian faculty member stating, “Death to all Arabs! Die Islamic scumbags!” He was put on probation.

4. A UW-Oshkosh male student told an Asian-American student, “It’s people like you—that’s the reason this country is screwed up,” “You don’t belong here,” and “Whites are always getting screwed by the minorities and some day the whites will take over.” He was put on probation and required to undergo alcohol abuse assessment and treatment.

5. A UW-Oshkosh female student referred to a black female student as a “fat-ass nigger” during an argument. Already on probation for a non-race-related incident, she was required to watch a video on racism, write an essay and letter of apology, and was reassigned to a different dormitory.

6. A UW-River Falls male student yelled at a female student in public, “You’ve got nice tits!” He was put on probation, required to apologize and refrain from any further contact with her, and to undergo psychological counseling.

7. A UW- Stevens Point male student impersonated an immigration official and harassed a Turkish-American by demanding to see immigration documents. He was put on probation.

8. A UW- Stevens Point male student motivated by racial bias stole $60 from his Japanese roommate by accessing his TYME card and password. He was put on probation, and required to provide restitution as well as take a course in ethics or East Asian history.

9. A UW-Stout male student involved in a physical altercation with two residence hall staffers called one a “piece of shit nigger” and the other a “South American immigrant.” He was suspended seven months.

On March 29, 1990, less than a year after UW-17.06(2) was adopted, the UW-Milwaukee student newspaper, UWM Post, Inc., and an anonymous student prosecuted under the code filed suit against the UW Board of Regents. They maintained that it violated the First Amendment protection of freedom of expression by being both unduly vague and overbroad. On the other hand, the Board of Regents maintained that the policy did not violate the First Amendment since (1) its falls within the category of unprotected speech known as “fighting words” identified in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), (2) even if it is not technically within the “fighting words” framework, the rule is still justified because it satisfies the “balancing test” also identified in Chaplinsky, (3) UW-17 uses the same language as court-upheld Title VII sexual harassment law, and (4) even if it is overbroad, the court can narrow the rule so it does not reach unprotected speech. But on October 1, 1991, the federal district court in UWM Post v. Board of Regents, 774 F. Supp. 1163 (E.D. Wis 1991) and struck down the rule as an unconstitutional infringement of the First Amendment.

Judge Warren begins:2 First, none of the university’s arguments are successful. First, the policy does not count as fighting words because the 1942 decision has been clarified in later cases so that “fighting words” today must (1) be likely to result in a breach of the peace, (2) be highly likely to result in imminent violence, and (3) be addressed to the person of the hearer; and UW-17 does not satisfy condition (2). “An intimidating, hostile, or demeaning environment certainly ‘disturb[s] the public peace or tranquility enjoyed by citizens of [a university] community. However, it does not necessarily tend to incite violence….The term “hostile” covers non-violent as well as violent situations. Moreover, an intimidating or demeaning environment is unlikely to incite violent reaction.”

Warren continues: Second, the balancing test used in Chaplinsky involving minimal social value and harmful effects does not justify UW-17.06(2) because (1) the Supreme Court has not given lower courts the authority to use the test, and (2) the Seventh Circuit (the relevant appellate court) has ruled that the balancing test is only appropriate for content-neutral speech rules, and UW-17.06(2) is not content neutral because it only prohibits those fighting words that are racist or sexist, etc., and does not prohibit all fighting words.

Warren continues: Third, Title VII sexual harassment law does not apply to this case since: (1) Title VII addresses employees, not students, (2) Title VII is based in the notion of “agency,” and students are not normally “agents” of the university, and (3) Title VII is a federal statute and therefore cannot supersede the requirements of the First Amendment. And finally, for all of the above reasons, there is no way to save the rule through a narrower construction of it.

Warren concludes: The rule is both overbroad and unduly vague. It is overbroad because it prohibits protected speech. For example, it bans discriminatory speech that is offensive but is not likely to result in imminent violence. It also is unduly vague because it fails to specify whether the speaker must actually succeed in creating a hostile environment or whether it is sufficient for the speaker to merely intend to create a hostile environment. “The problems of bigotry and discrimination sought to be addressed here are real and truly corrosive of the educational environment. But freedom of speech is almost absolute in our land and the only restriction the fighting words doctrine can abide is that based on the [legitimate] fear of violent reaction. Content-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands.”3

This was the second legal defeat for a campus hate speech code, and set a stricter precedent for a series of further legal decisions. A federal court in Michigan had struck down the University of Michigan hate speech code two years earlier in 1989,4 but the UW code was intentionally drafted to avoid the problems of the Michigan code. For example, it was made both clearer and narrower in scope because it specifically excluded comments made in classrooms to the group and required the behavior to create a hostile environment. It also was based explicitly in the fighting words doctrine and Title VII common law decisions, rather than on unstated legal grounds. Moreover, its interpretive guide was more sophisticated, taking into account both the kind of speech involved and its context. So although there has been a continuing legal and moral debate about the rightfulness of hate speech codes for students and faculty, the legal defeat of UW-17.06(2) led a parade of later cases also refusing to enforce such codes.5

Notes

1 Patricia Hodulik, “Racist Speech on Campus,” 37 Wayne State Law Review 1433 (1991).

2 UWM Post, p. 1171.

3 UWM Post, p. 1181.

4 Doe v. University of Michigan, 721 F. Supp 852 (E.D. Mich. 1989).

5 See, for example, Iota XI Chapter of Sigma Chi Fraternity v. George Mason University, 773 F. Supp (E.D. Va. 1991); Dambrot v. Central Michigan University, 839 F. Supp 477 (E.D. Mich. 1993); Silva v. University of New Hampshire, 888 F. Supp 293 (D.N.H. 1994); Corry, et.al,. v. Stanford University, County of Santa Clara Superior Court, Case no. 740309, slip op. (Cal Super. Ct. 27 February 1995); and Cohen v. San Bernardino Valley College 92 F.3d 968 (9th Cir. 1996), cert. denied, 117 S.Ct. 1290 (1996).