The Foundation for Individual Rights in Education, whom I have generally found quite trustworthy, reports what sounds like a glaring threat of a First Amendment violation:
Less than one year after the University of Massachusetts Amherst defended the free speech rights of a columnist who celebrated the death of Army Ranger Pat Tillman, the university has campaigned to persecute nine students who were seen in photographs containing a caricature of one of them as the “Grand Wizard” of the Ku Klux Klan. The drawing, which was intended to mock both the Klan itself and spurious accusations of “racism” made during the course of a student government election campaign, depicted the so-called Grand Wizard with his eyes crossed and his tongue hanging out of his mouth. The mere existence of such a drawing led UMass to charge the nine students with “harassment” and threaten them with penalties ranging from criminal charges to expulsion. . . .
On March 26, 2004, after the elections for the UMass Student Government Association (SGA), several candidates gathered in a student organization office for a post-election party. One student at the party, Patrick Higgins, was defeated in a race for SGA President during which he was labeled a “racist” for opposing a plan to set aside a number of seats in the Student Senate solely for members of a campus group called ALANA. (Eventually the plan was judged unconstitutional by UMass’s own general counsel.) ALANA claims to represent “African, Latino/a, Asian/Pacific Islander, and Native American” students at UMass.
In an effort to mock the charges of racism, a person at the party drew a caricature of Higgins as a member of the Ku Klux Klan on a dry-erase board. The “Grand Wizard” was depicted wearing a pointed hat and a cape, and holding a burning cross. With his eyes crossed and his tongue hanging out of his mouth, the “Wizard” had a speech bubble written over his head that read, “I LOVE ALANA!!” See the caricature here. One of the partygoers took photographs of the caricature and posted them on his personal website. An unknown student later circulated the photographs around campus, along with others that appear to show some of the partygoers drinking alcohol. . . .
After controversy erupted, UMass Amherst Vice Chancellor for Student Affairs Michael Gargano told the Daily Collegian campus newspaper, “I have the authority to remove these people from office . . . I could give them 500 hours of community service, have them conduct an open forum discussion; I have a variety of sanctions at my disposal. I’m not ruling out dismissal.” Gargano further articulated his threats at a September 27 “diversity panel,” stating, “[I]f the Student Government Association doesn’t move on it, I will. Are we clear? Resign!”
The same “diversity panel,” consisting of Gargano, SGA President Eduardo Bustamante, and several UMass faculty members, labeled the nine students in the photos the “KKK Nine,” implying that they supported the Ku Klux Klan. . . . .
UMass has charged all nine students with “harassment conduct less than a physical attack” and other charges related to the consumption of alcohol. During the resulting judicial proceedings, UMass has offered “settlements” that include punishments far more severe than those typically imposed for first-time alcohol offenses.
On October 7, FIRE wrote UMass Amherst Chancellor John V. Lombardi on behalf of the students, pointing out that not only was the drawing irresponsibly mischaracterized [as an experssion of support for the KKK], but that it was also constitutionally protected expression that UMass, as a state institution, was forbidden to punish. FIRE pointed out that “the First Amendment protects even extraordinarily offensive satire and parody,” and emphasized that any punishment decisions “must be made without reference to the ‘offensive’ caricature.” Read FIRE’s letter to UMass here.
UMass’s actions in this case stand in stark contrast to its treatment of Rene Gonzalez, a UMass graduate student who wrote an article for the Daily Collegian last spring that called NFL player turned Army Ranger Pat Tillman an “idiot” and said that “this was a ‘G.I. Joe’ guy who got what was coming to him.” UMass rightly refused to take official action against Gonzalez. Instead, UMass system President Jack Wilson responded, “While I recognize Rene Gonzalez’s right of free speech, I must also assert my right of free speech to criticize what he said.”
“President Wilson made the right decision once, and we are hopeful that he will do so again in the face of the hysteria surrounding this drawing. We hope that President Wilson and Chancellor Lombardi will demonstrate continued faith in the power of the marketplace of ideas to deal with expression that some might find offensive. Otherwise, UMass will become just one other disappointing example of the many colleges and universities that simply give up on free speech,” concluded FIRE’s French. . . .
Punishing students for this sort of speech — whether dismissing them or giving them community service or requiring them to conduct discussions — is clearly a First Amendment violation. It would be so even if they genuinely expressed support for the KKK, which they weren’t doing.
It’s a little less clear whether a university could remove student government officials based on their constitutionally protected speech. I doubt it, since the officials aren’t university employees, but represent the students; but the matter isn’t completely clear. But even if the university has this legal power, surely this is not a sensible situation to use it.
In any case, I think it’s appalling that University officials would be threatening students with clearly unconstitutional disciplinary sanctions for their constitutionally protected expression. One might have thought that the last 15 years of campus speech code litigation would have taught public university officials that labeling speech “harassment conduct” (note again the “harassment” rhetoric, apparently borrowed from hostile environment harassment law) can’t magically dissolve the constraints imposed by the First Amendment. Apparently one would have thought wrong.
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