CATO Institute

10/28/03

Free Speech? Not on Campus

by David E. Bernstein

David E. Bernstein, a professor of law at George Mason University, is the author of "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws" (Cato Institute, 2003).

Is it a no-no for students to satirize affirmative action at the University of California-Irvine? The answer is a resounding "Yes!" Last week, the university administration shut down an "affirmative action bake sale" run by the College Republicans. Members of the group offered students donuts at prices ranging from ten cents to one dollar, depending on each student's race and gender. The obvious message: It's wrong to treat people differently based on immutable characteristics. But apparently you can't say that in public.

Dean of Students Sally Peterson was neither amused nor enlightened. Responding to complaints from Asian and Hispanic student groups, she ordered the bake sale organizers to take down their price list, and to stop selling the donuts at varying prices. Peterson told the organizers that the bake sale violated the university's nondiscrimination policy. In other words, in Irvine free speech and the First Amendment take a back seat to so-called nondiscrimination rules.

The students involved attempted to strike a compromise: They would sell the donuts at one price, but would post a sign listed "suggested retail prices" that differed by race and gender. Peterson wouldn't buy that either, and forced the students to completely shut down their bake sale.

The absurdity of Peterson's position is clear. The purpose of the bake sale was to make a political point, not to engage in discrimination. The bake sale organizers were engaging in a clever bit of street theater; so clever, in fact, that it led some student groups opposed to the event's message to persuade Peterson to use a wooden and foolish interpretation of a nondiscrimination policy to shut it down.

Unfortunately, the public universities in California have a history of stifling dissent on racial matters, and of kowtowing to student interest groups that claim to be offended by their fellow students' speech. A few years back, UCLA suspended an editor of the student newspaper for running an editorial cartoon ridiculing affirmative action preferences. In the cartoon, a student asks a rooster on campus how it got into UCLA. The rooster responds, "affirmative action." After the editor was sanctioned by UCLA, a student editor reproduced the cartoon in the California State University-Northridge student newspaper and criticized UCLA officials for suspending the paper's editor for engaging in constitutionally protected expression. Northridge officials suspended the student from his editorial position for two weeks for publishing controversial material "without permission." The school removed the suspension from his transcript under threat of a lawsuit.

In another incident, the Phi Kappa Sigma fraternity at the University of California-Riverside was punished for distributing a t-shirt advertising a "South of the Border" party. The shirt featured a figure wearing a serape and sombrero sitting on a beach looking at the setting sun and holding a bottle of tequila, along with a picture of a set of steel drums and a wooden tiki head, in which was carved the word "Jamaica." The bottom of the shirt depicted a smiling Rastafarian carrying a six-pack of beer while standing in a Mexican cantina frequented by Riverside students, humming a lyric from an antiracist song by Bob Marley: "It doesn't matter where you come from long as you know where you are going."

Campus Latino activists charged that the shirt "dehumanizes and promotes racist views of Mexican people," and they formally accused the fraternity of violating university rules by circulating "offensive racial stereotypes." Ultimately, the university required fraternity members to destroy all of the t-shirts, apologize in writing, engage in community service, and attend two seminars on multiculturalism-an ironic punishment given that despite the fact that almost half the fraternity members were themselves minorities. The university also stripped the fraternity of its charter and expelled it from campus for three years. The university eventually lifted all of the sanctions, but only after the fraternity threatened a First Amendment lawsuit.

Most recently, California Polytechnic State University student Steve Hinkle, who is white, was punished for posting in a campus multicultural center a flyer that promoted a speech by Mason Weaver, an African American author who argues that dependence on government programs is a new form of black slavery. A meeting of black students was just concluding as Hinkle quietly posted his flyer, and several of them told Hinkle that they found the flyer offensive, and asked him to leave and take the flyer with him. He declined to do so, and was charged and convicted by a university judicial body of "obstruction or disruption" of a campus function. Hinkle has since filed a lawsuit alleging that the university violated his First Amendment rights.

Universities are supposed to be bastions of free and open debate, and public universities, in particular, have a First Amendment obligation to respect freedom of expression. Unfortunately, it often turns out that it takes a lawsuit to get California university officials to fulfill that obligation.

This article was published in the Orange County Register, Oct. 21, 2003.