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Speech on Your Dorm Room Door:

The North Carolina State Technician newspaper reports:

"No Blacks allowed White Room Only, Blacks next door," a sign on the door of an Avent Ferry Complex apartment read last Thursday [Feb. 14] ....

"It was referred to the University for disorderly conduct and racial harassment," [Chief of Campus Police Tom] Younce said....

The reporter told me (in response to my e-mail) that the sign was put up by the apartment's three residents. The apartment is in a school-run dorm.

The sign is repulsive (unless it's some joke that all the neighbors grasped as such, but that the administration somehow overreacted to), but it is constitutionally protected by the First Amendment against administrative punishment, whether on a "disorderly conduct" theory (which would presumably focus on the sign's general offensiveness and tendency to lead to hostility and possible fights) or on a "racial harassment" theory. The university could ban all signs on the outside of dorm room doors (though see this contrary view), but even in a "nonpublic forum" such as dorm room doors, it can't impose viewpoint-based bans that forbid racist speech but allow other speech. Nor does the narrow "fighting words" exception apply to speech like this, which isn't focused on a particular person.

One justification I heard for a possible ban on such signs is that the university can ban discrimination in housing, and therefore can ban signs that announce to students that they will be so discriminated against. But I'm not sure that a university could, even in its capacity as landlord, interfere with tenants' "intimate association" right to choose whom to allow into their living rooms (or bedrooms). And even if it constitutionally could have, I highly doubt that North Carolina State would impose such a shocking constraint on people's freedom of choice in whom to socialize with. If you don't want blacks, white, Scientologists, men, or anyone else in your home, it seems to me you should be free to make that choice. So if the university wants to defend the restriction on the grounds that they ban discrimination in choice of guests, I'd like to hear them do that — that would be even more scandalous than the punishment of the speech.

UPDATE: I inadvertently originally cast the last paragraph as if the university had already found the sign to be punishable; I've corrected this to reflect the fact that right now there's just a question whether the sign is punishable.

CDU (mail) (www):
At least the campus police had the good sense to realize that, despite the offensive nature of the sign, it was "not a criminal matter".
2.27.2008 2:17pm
Ben P (mail):

The university could ban all signs on the outside of dorm room doors (though see this contrary view), but even in a "nonpublic forum" such as dorm room doors, it can't impose viewpoint-based bans that forbid racist speech but allow other speech.


In my experience even the argument that doors aren't a public forum is pretty weak.

Where I went for undergrad people typically posted all manner of things on their dorm room doors toward proving all sorts of things. Further, I don't see what sort of purpose they'd attempt to be fulfilling by regulating what students are putting in what essentially amount to rented rooms.
2.27.2008 2:34pm
Dick King:
It's been a while, but I recall lots of de facto "black wings" of college dorms when I was in college. They generally had signs announcing themselves as such.

-dk
2.27.2008 2:46pm
Adam J:
"If you don't want blacks, white, Scientologists, men, or anyone else in your home, it seems to me you should be free to make that choice." Kind of a straw man argument there- who would dispute this, and it's a far different issue than the question of whether racist signs should be allowed to be displayed on the outside of doors in the hallway of a college dorm. Plus, if the speech is protected, the university will probably just decide to disallow all signs- not exactly improving the situation.
2.27.2008 2:51pm
John (mail):
Has anyone looked into treehouses with "No Girls Allowed" signs? Or various "cultural" centers on campus that celebrate, e.g., women, blacks or others and which routinely make others very unwelcome?
2.27.2008 3:01pm
Hans Bader (mail):
You can't force them to invite people of different races into their dorm room. Freedom of intimate association bars that, even as part of a general prohibition on discrimination. See Louisiana Literary and Debating Ass'n v. City of New Orleans (5th Cir. 1994) (antidiscrimination ordinance could not apply to truly private noncommercial club); Wilson v. Taylor (11th Cir. 1984) (dating is protected by freedom of association).

So I don't see why you can ban the speech announcing, that, either. The mere fact that the speech is offensive or disagreeable does not make it unprotected. See Texas v. Johnson (1989).
2.27.2008 3:02pm
Hans Bader (mail):
It does raise freedom-of-intimate association issues.

The Louisiana case I cited that held that choosing how you associate with can be protected by freedom of intimate association even when it is discriminatory is:

Louisiana Debating and Literary Association v. City of New Orleans, 43 F.3d 1483 (5th Cir. 1995) (city's race discrimination ordinance was trumped by freedom of association as to truly private clubs that were not open to the public and were not commercial in their activities).

I gave the case name partly wrong.

I believe that boy scout packs have been treated as subject to freedom of intimate association, see Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994), and who you invite into your dorm room is even more intimate than who you invite into a 20 member pack.
2.27.2008 3:07pm
Hoosier:
The up-side to public colleges includes lower costs and (often) stellar faculty. It's hard to think of free expression as a "down-side." But I suppose in this case it is.

This is such a stunning thing to post on a dorm-room door that I have trouble imagining that there isn't more to the story: That the guys "next door" are buddies of the "White Room" students, and this was some sort of prank. (I lived with two gay housemates in grad school, and we used to "do crap" like this to each other. They'd take the wall calendar and put up items like "Drug Hoosier, then have orgy." I'd respond by listing "Anti-Gay Rally and Pot-Luck at Church--Tuesday.") I mean, if the residents were serrious, they would be risking physical harm, no?

But aside from that, it must be hard for the black taxpayers of NC to know that they are subsidizing the "education" of students such as these.
2.27.2008 3:36pm
Dilan Esper (mail) (www):
I have pretty strong free speech credentials, but I think Professor Volokh is absolutely wrong about this one.

This is precisely within the implicit exception to the First Amendment for discriminatory solicitations. The university has an absolute right to bar its students from discriminatory acts-- including barring blacks from their residences. If the students don't like it, they can transfer to a university that allows their students to engage in racially discriminatory conduct.

The speech is a discriminatory solicitation, and therefore is unprotected speech.

Let's be clear here-- no public university can bar students from saying they hate blacks, or would not like to socialize with them, or would no like to live with them, or do not want them to be guests in their house. A university can, however, expel or discipline a student for actually discriminating against blacks. This is simply a classic speech vs. conduct dichotomy, the same one that protects racist speech by a public employee but allows a public employer to punish racist conduct.
2.27.2008 3:46pm
Elliot123 (mail):
"A university can, however, expel or discipline a student for actually discriminating against blacks."

Does that include dorm wings reserved for one particular race?
2.27.2008 4:00pm
Hoosier:
Dilan Esper--Interesting. And, much as I hate to admit it, I sort of hope that there is an *honest* exception in these cases. But I'm one of the non-lawyers, so I always ask the dumb questions.

Could the university punish students who exhibitted a pattern of not allowing black people in their dorm room? Or does the discrimination have to be overtly stated to fall under the "discriminatory conduct" rubric? What if the students counter that they have never actually prevented a black student from entering their room, and thus claim that this is only an issue of speech, and *not* conduct?

Those are the specific questions. They all come down to a general question, and I have no idea even how to find the answer: How hard will it be for the university, legally, if they try to discipline these students for posting that sign? Anyone with a hunch?
2.27.2008 4:05pm
A.C.:
Was there a corresponding prior move from the other side -- either "no whites" or "blacks only" on somebody else's door? If so, how was that received?

If not, how do people think it would be received? And would it matter which way it was phrased?
2.27.2008 4:14pm
Adam J:
Dilan- I have my reservations about whether this sort of speech should be allowed, but it's quite clear that students are indeed free to discriminate regarding who they allow into their dorm room. We're not a society that is about to coercively force associations that people don't want to make.
2.27.2008 4:18pm
Richard Gould-Saltman (mail):
We seem to be wandering far afield here; we have no idea who these guys actually did or didn't let into their dorm room. We're also missing any other context clues, like who might be "next door", and what, if anything, they may have had posted on their doors.

If there isn't a joke involved, and if the day-to-day interaction at this place is as close to that in a barracks as the average college dorm is (I just looked at one last college campus this weekend with my high shcool aged son, so my memory's refreshed)then the sign's deliberately edging up perilously close to "fighting words". Would "No coloreds" cross the line? How about "Niggers keep out!" ?

Frankly, while I realize that self-help is not to be encouraged, the campus police may have intervened on the rationale that they should do so before the folks with the door sign found themselves at the business end of some self-help.


r gould-saltman
2.27.2008 4:40pm
The Unbeliever (mail):
"disorderly conduct and racial harassment", hmm.

What if they never posted the sign, but every time a black student knocked on the door they politely referred him to the next room over... would there be a punishable offense? Would that be racial harassment (I don't see how), or racial discrimination (possibly but I don't see how it's actionable), or is it a valid act covered under the cited freedom of intimate association?

Also, what exactly is the "disorderly conduct"--the posting of the sign, or some actions that accompanied it? I would think that the sign alone would merely be speech, and posting it an expression thereof; I thought there had to be some kind of purposeful activity involved, like the actual turning away I wondered about above. If that were the case, perhaps posting the sign can be taken as an attempt to prevent such conduct from occurring!
2.27.2008 4:43pm
MDJD2 (mail):
Can this not be banned as under the time-place-manner doctrine?

A dorm corridor is not like a street, or even like an apartment house. Residents have to share bathrooms. there are a lot of people living VERY close together. There has to be some mutual respect for this to be successful.

This is about the first time I have ever disagreed with Prof. Volokh about a free speech issue, but the potential for disruption of dorm life makes this sign more than a mere exercise of speech.
2.27.2008 4:45pm
Richard Gould-Saltman (mail):
Unbeliever:

Except if someone comes knocking at your dorm room door, you say "Who's there?" and, if they're not your friends you invited over, you say "No thanks" or "We don't want any" or "Go away and leave me alone!" or whatever. There's no particular reason to say: "Go away because I don't want to talk to black people/Jews/Scientologists/Republicans".

Since there's no general right of the public, or members of the student "public", to come into a dorm room without occupants' permission, the sign can't have been to "prevent" a problem. It's got to have had some other intended purpose, and the inference that it's "transgressive" in a sort of sophomoric way, or deliberately provocative, is a reasonable one.
2.27.2008 5:00pm
Hans Bader (mail):
There is a serious First Amendment issue here, involving freedom of intimate association and freedom of speech related thereto.

Dilan Esper is mistaken. Some discriminatory acts ARE protected by the First Amendment. See Louisiana Debating and Literary Association v. City of New Orleans, 43 F.3d 1483 (5th Cir. 1995) (city's race discrimination ordinance was trumped by freedom of association as to truly private clubs, as long as they forbade commercial activity on their premises, since they were entitled to choose members based on race or sex).

An employer can't discriminate based on race, but a homeowner can discriminate as to who they invite into their home, and a roommate can discriminate as to who they invite into their room. Cf. Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (local Boy Scout pack could not be forced to admit atheists or gay people, contrary to California's Unruh Civil Rights Act, in light of freedom of intimate association).

Moreover, cases like Linmark, R.A.V. v. St. Paul, and Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992)("listeners' reactions to speech are not a content-neutral basis for regulation"), indicate that this was a content-based speech restriction, so it does not qualify (as time-place-manner doctrine requires) as content-neutral.
2.27.2008 5:01pm
Deoxy (mail):
If the races involved were reversed, would the university have had the same reaction? Unless they are very different for the vast majority of such places today, the answer is, "No."

Therefore, this case is absolute bunk, end of story.

BUT, for the sake of argument, let's assume they would have. (That's a vary large assumption, of course, as the examples of "womyn's studies" and other such areas of campus, when "men's studies" is an absolute non-starter, show that universities do not really have any concept of "equality" that doesn't make a mockery of the word.)

I still think the university is quite clearly in the wrong, in agreement with the original post.
2.27.2008 5:05pm
LM (mail):
EV said,

One justification I heard for the university action is [...]

What university action?

“It was referred to the University for disorderly conduct and racial harassment,”

Doesn't that mean the University hasn't made a determination on the merits yet?
2.27.2008 5:26pm
arbitraryaardvark (mail) (www):
I still think the university is quite clearly in the wrong, in agreement with the original post.
Nothing's actually happened yet. Let's not jump the gun.
2.27.2008 5:29pm
William Van Alstyne (mail):
I doubt whether Gene is correct. If one supposes that the "Avent Ferry Complex" is a "school run dorm," as Gene suggests, and if among the students who are housed in the dorm there are "nonwhite" students (or, even assuming that there are currently no such students, "nonwhite" students are of course equally eligible to apply for apartments in this building (as must surely be the case)), I doubt that external room-door signs prominently declaring--
"NO BLACKS ALLOWED WHITE ROOM ONLY, BLACKS NEXT DOOR"
--need be permitted by the university, whether or not the students occupying the particular apartment(s)featuring such corridor-facing signs may choose not to invite any nonwhite person as such.
What would be a "protected" sign for one such student (or group of students--those living in the apartment)to post must presumably be equally protected for others of a similar mind also to post. One readily envisions a corridor of the state university owned-and-operated dormitory (for its students) arrayed with identical signs, a veritable "gauntlet" of "No Blacks Allowed In Our Room" constituting the corridor doors "greeting" Black students as they either a) merely consider applying for an otherwise available apartment on that corridor, or, assuming some may already occupy some of the apartments on that corridor, (b)must endure each day, going to and coming from their apartment(s)on that corridor--with its array of "blacks not welcome here" (i.e., in this apartment)brashly advertising the "policy" of those within each such apartment.
"Condoning" these wretchedly demoralizing signs, arrayed along the common corridor of one's university-provided student housing, does not strike me as a requirement of the first or fourteenth amendment. To the contrary--that the university would presume to take a "Pontius Pilate" view (i.e., "there's nothing we can do....you see, it's a constitutional right of the student occupants of those apartments to post such signs--any action we might take to disallow it would be a prohibited "content" or "viewpoint" discrimination" interference...), seems to me to border on the risible, if not the contemptible. Rather, failure of a public university to intervene under the circumstances,would, I think, more plausibly be actionable: the university could not "wrap itself in the First Amendment" to "explain" itself adequately when suitably pressed,as I should think it should be pressed.
Of course, one may seek to "distinguish" a case where it is "merely" one dormitory room door featuring such a corridor-facing sign (rather than, say, six or seven, whose "like-minded" occupants want to put up their "me too" (i.e., identical) sign), presumably on the ground that merely one such sign is hardly enough... But I think clearly not. Do others disagree? If so, why is that?
Cheers and best wishes,
Wm. Van Alstyne
2.27.2008 5:38pm
tarheel:
I suspect the school will make a contract, not constitutional, argument. The students surely signed some sort of residence contract and it probably contains either a non-discrimination clause or a conduct clause that would (arguably) cover this situation.
2.27.2008 6:05pm
Bruce Hayden (mail) (www):
This is a classic example of bad facts. But the law is also replete with good law resulting from bad acts by bad people. For example, I was reading recently the story behind Miranda v. AZ. Miranda was actually retried after his Supreme Ct. win, convicted, then murdered shortly after his release over a p*k*r game (or similar) - and his killer got his Miranda rights when arrested shortly thereafter.

My point is that these guys may not be sympathetic parties, but that is where the interesting law is made. I don't see a state getting away with silencing them in such an intimate situation.

As for time, place, or manner restrictions, are any of you proposing that it would be ok if they only put out the sign at certain times of the day? Or that they had a less obtrusive place to put up their sign? Or, that they had a less intrusive manner to make their point? The fact that the location was at the entrance to their dwelling would seem to cut against any such arguments. I see the school having a hard time overcoming strict scrutiny here, given the intimate circumstances.

Also, keep in mind, this isn't the Civil Rights Act, or any housing laws, but the 1st Amdt. made applicable to the states (including this one) via the 14th Amdt. The school is (presumably) a state institution, and therefore is considered part of the State in this regard. But compounding the issue is the intimate nature of where the sign was posted. My view is that no matter how little sympathy these guys have here, this is almost as close to the core of the 1st Amdt. as you can get.

Interesting aside - this post got blacklisted by EVs filter, apparently because of my reference to the game that Miranda was playing. Hopefully, all those *'s will let it through.
2.27.2008 6:09pm
Sean M:
Let me begin by saying it is somewhat intimidating to be responding to my current Constitutional Law professor as a mere 1L.

But the magic of the internet means that the great William Van Alstyne and I are of equal pixel entitlement in the Volokh Conspiracy comment section, so here we go.

Prof. Van Alstyne asks whether a University must simply wash its hands if every student on the corridor posted a "No Blacks Welcome Here" sign. But his imagined response for the University is not the only response possible. It need not say, "Oh, well, there is nothing we can do. There is a First Amendment right, you see."

Instead, it can say this: "We find the signage in the hall despicable, racist, and intolerable. While we acknowledge the students' right to post it, we also condemn in the strongest terms possible their content and message. We will redouble our efforts to promote tolerance and diversity in our community and we will not stop until we have a community where all feel welcome everywhere. We cannot compel our students' thoughts, but we can attempt to persuade them in every legal means. We encourage all students to post a 'Blacks Welcome Here' sign on their door in response to this incident."

Sure, it doesn't have the "oomph" of "Take it down or we'll kick you out," but it respects the First Amendment right of the students to be bigots while at the same time utilizing the University's right to employ counterspeech to answer hate speech. And given the circumstances and messages, I have no doubt the University has the bigger megaphone and win in the end. Social pressure can be just as effective as official pressure, and, I think, more consistent with the guarantees of the Constitution.

Or the University can just ban all signs on doors. But it can't tolerate some messages -- "This room is a Safe Zone for Gays, Lesbians, and Transgenders" -- and forbid others -- "No Blacks allowed." That is the essence of viewpoint neutrality.
2.27.2008 6:09pm
Oren:
If I were black, I would consider them 'fighting words'. I know Chaplinsky has been narrowed a few times but I thought it was still good law. Assuming it is good law (and please correct me if it isn't!), then I think the regulation passes the test:
. . . "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Certainly these words inflict injury on any black person walking by and would incite them, at minimum, to tear down the sign. Their social value is minimal and, best I can tell, they are not part of any larger exposition of ideas.
2.27.2008 6:28pm
Hans Bader (mail):
They're not fighting words, because they're not aimed at a specific individual. See Cohen v. California (Supreme Court decision). The fact that they are racist doesn't change that. See R.A.V. v. St. Paul (1992) (concurring opinion by Suppreme Court justices) (racist symbols aren't fighting words). Nor does the fact that it may be hostile or offensive to people based on their race, and affect the educational environment. See UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991) (so holding).

And, as I noted above, freedom of intimate association protects some discriminatory acts that are not commercial in nature, like who one invites into a dorm room.
2.27.2008 6:58pm
Mark Jones (mail):
How can a sign be "fighting words" in any meaningful sense? The very quote involved says fighting words are those "which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Nobody has uttered a word. It's a sign. The residents of the room may or may not even be present when someone sees the sign and takes offense. If the offended party knocks on the door and then punches out the resident, can he claim provocation? Not in my book. That's assault and battery, provocative sign or not. (For that matter, hypothetically the sign could have been put in place by a prankster and the occupant of the room--who is momentarily going to be punched by an offended student--is entirely innocent.)
2.27.2008 6:59pm
Dilan Esper (mail) (www):
Dilan- I have my reservations about whether this sort of speech should be allowed, but it's quite clear that students are indeed free to discriminate regarding who they allow into their dorm room. We're not a society that is about to coercively force associations that people don't want to make.

So you think that a public university cannot force its students to associate with people they do not want to? Even if the public university believes that this is part of its educational mission?

This is not an area with a lot of cases, but my impression is that in fact a public university has broad power to require students to associate with people they would not otherwise want to associate with, as long as it is part of their educational mission. They can force you to live on campus, they can force you to room with another person, and they can force you to room with another person of a different race or religion. Indeed, this is implicit in school desegregation cases and fairly explicit in affirmative action cases.
2.27.2008 7:16pm
Dilan Esper (mail) (www):
Hans Bader:

Those cases are way off. It is very true that members of certain private clubs and civic organizations have a right of intimate association that includes the right to engage in invidious discrimination within the confines of the group.

Students in public universities stand in a rather different stead with respect to the antidiscrimination regulations of the school.
2.27.2008 7:19pm
JamesWN (mail):

Certainly these words inflict injury on any black person walking by and would incite them, at minimum, to tear down the sign. Their social value is minimal
and, best I can tell, they are not part of any larger exposition of ideas.

No, the injury prong of Chaplinsky is not a constitutional way around the requirement that the speech must be personally abusive and likely to provoke a reasonable person to violent retaliation, because that would in effect permit censorship of speech deemed to be fighting words per se. The sentence 'Niggers are stupid' could then be categorically banned as fighting words per se from sidewalks or ´streets on the assumption that merely uttering it in the presence of blacks was likely to provoke a fight.
The concurring opinions in R.A.V though criticizing Scalia for striking down the St. Paul ordinance under a new novel theory would also have struck downl the law as overbroad. The Minnesota Supreme Court had attempted to save the ordinance by construing it as limited to fighting words defined as utterances one knew would arouse alarm, anger or resentment in others on the prohibited grounds, but even this narrowing construction would ban a substantial amount of protected speech.
In no case has the court held that infliction of emotional injury supplies an independent ground for suppression of utterances as fighting words per se. Despite the arguments for creating an exception for cross burning, the court nonetheless held that nonintimidating cross burning intended to incite hatred and racial supremacy did not fit within the fighting words exception.
2.27.2008 7:25pm
tarheel:

Students in public universities stand in a rather different stead with respect to the antidiscrimination regulations of the school.

I agree. There might be an intimate association claim if this was a group whose very nature would be impacted by enforcement of a non-discrimination policy -- a conservative Christian fraternity being forced to accept openly gay members, for example -- but that is not the case here.
2.27.2008 7:27pm
Eugene Volokh (www):
Most of the arguments I was thinking of responding to have been adequately responded to already. But I should note that this can't be defended as a "time, place, or manner" restriction -- that doctrine is applicable only to content-neutral restrictions, and here the restriction is content-based (and in fact viewpoint-based).
2.27.2008 7:27pm
Boose:
I happen to know that there was a noose made out of toilet paper found in one of the bathrooms during the fall at NCSU. A lot of people thought it was just some toilet paper that looked kind of like a noose, and a lot of other (mostly black) people thought it was a noose/racist symbol. I'm not sure if the two are related, but the students might be trying to make a point about free speech, or they might be racist dirtbags. I'm not sure. A lot of students at NCSU fall into both categories.
2.27.2008 7:30pm
The Unbeliever (mail):
So you think that a public university cannot force its students to associate with people they do not want to? Even if the public university believes that this is part of its educational mission?


This mission extends to forcing "intimate association" within the students' own dorm rooms?
2.27.2008 7:51pm
JamesWN (mail):
Well, the Supreme Court has pretty much limited the fighting words doctrine to face to face insults likely to provoke a reasonable person to violent retaliation.
But there is a tortuous reasoned North Dakota case Svedberg v. Stamness, 525 N.W.2d 678 (N.D. 1994) which seems to go the other way by upholding a disorderly conduct restraining order, against a First Amendment challenge. The facts aren't sympathetic to the appellant, but in reality the holding seems to rest more on juvenile control than on a state interest in preventing violence.
2.27.2008 7:51pm
Sean O'Hara (mail) (www):
The students certainly have a right to decide who they allow into their dorm -- with one notable exception: their dorm-mates. Unless NC State's policies are radically different from where I went to college, the school's under no obligation to provide these kids with the roommates they request. If next semester they find themselves assigned three separate rooms, with two black roommates apiece ... well wouldn't that be poetic justice.
2.27.2008 8:25pm
Bored Lawyer:

A university can, however, expel or discipline a student for actually discriminating against blacks. This is simply a classic speech vs. conduct dichotomy, the same one that protects racist speech by a public employee but allows a public employer to punish racist conduct.


The problem with this argument is that it assumes there is an overarching form of conduct called "discrimination." Not so. The law recognizes discrimination in certain contexts -- employment, housing, public accomodations. None of these are applicable here -- the residents of the dorm room are not hiring, nor renting out a room, nor running a public business like a restaurant out of their dorm room.

What the residents do have the right to is privacy in their dorm room. No one would expect a student to let a complete stranger into the room, nor even an acquaintance they did not particularly like. Even excluding someone from your dorm room because you find him or her to be a nerd, or ugly, or simply "icky" is within one's privacy rights, even if the underlying thoughts are abhorrent.

Is it gender discrmination for a woman dorm resident not to let men, especially stange men, into her dorm room?

Let's take this outside the context of a dorm room. Suppose someone is only interested in dating members of his/her own race or religion. That is certainly "discrimination" and certainly conduct. Can a state (or state actor like a state university) regulate such conduct?

Seems to me that the intimate association argument is the better one here.
2.27.2008 8:32pm
Michael J.Z. Mannheimer (mail):
2.27.2008 9:37pm
ReaderY:
Neither the Supreme Court, the 4th Circuit, or the Supreme Court of North Carolina has ever recognized a blanket "right of intimate association" so there's no such legal concept to address in North Carolina. North Carolina prohibits fornication, and its courts have already held that such restrictions survive Lawrence. A University dorm could certainly impose restrictions on dorm guests, certainly overnight guests.

The doctrine of in loco parentis still exists in North Carolina, universities do not simply rent dorms, they are charged with teaching students how to behave and imposing codes of conduct appropriate to leading a moral life. They have voluntarily chosen to loosen a number of traditional chaperoning restrictions on student socialization, but they could re-impose them at any time.
2.27.2008 10:28pm
Jim Rhoads (mail):
How did that one come out, Michael?
2.27.2008 10:53pm
A. Zarkov (mail):
Richard Gould-Saltman:

“Since there's no general right of the public, or members of the student "public", to come into a dorm room without occupants' permission, the sign can't have been to "prevent" a problem.”

Suppose you want leave your door open slightly, and in this dorm that’s generally taken as an invite for someone to come in. But suppose you don’t wish to invite members of some group as an exercise of your right of association. Then you might very well post a sign to “prevent a problem” of uninvited blacks into your room. It seems to me that if you have a right of association you should also have a right of access to the instruments to accomplish that right. A sign is just such an instrument.
2.28.2008 1:14am
Adam J:
A. Zarkov - if your worried about uninvited guests, you don't put discriminatory words on your door... you close it.
2.28.2008 10:31am
ReaderY:
Government's ability to restrict conduct, like overnight guests in dorm rooms, is much greater than its ability to restrict speech. "Intimate asscociation" (unlike, say, political association) is nowhere mentioned in the Constitution; free speech is specifically mentioned. It seems to me the speech claim is their proper claim, and indeed the only legitimate constitutional claim they have.
2.28.2008 10:55am
Michael J.Z. Mannheimer (mail):
Jim,

From what I remember, Mr. Firestone was charged with both "lewd conduct" and "non-cooperation" (for failing to take down the picture when ordered). The "lewd conduct" charge was dropped before the hearing, presumably because the University realized that putting up a picture was not the type of "conduct" contemplated by the regulation. Mr. Firestone was found responsible for non-cooperation by the Student Judicial Board. He appealed to the administrator in charge, Steve Nelson, and the result was reversed without any explanation. My guess is that he knew Mr. Firestone was serious and would have brought a civil action, possibly with the assistance of the ACLU, and he wanted to just drop it.

Thanks for asking.
2.28.2008 12:20pm
Michael J.Z. Mannheimer (mail):
CORRECTION: Since Steve Nelson was the complainant, he could not have heard the appeal. I cannot remember who reversed the ruling on appeal.
2.28.2008 12:22pm
Dilan Esper (mail) (www):
Is it gender discrmination for a woman dorm resident not to let men, especially stange men, into her dorm room?

Yes, it is. However, university antidiscrimination policies don't extend to this situation, so there's no reason to enact an exception to RACE discrimination policies just because we would want to allow this particular sort of gender discrimination.

In any event, a university certainly could prohibit a dorm resident from barring all men, even, say, male university officials accompanied by a female chaperone, from visiting her in her dorm, because the student believed that all men are pigs.

Look, intimate association claims are fine in many contexts, but a big educational mission of public colleges is to force students to associate with people they might not otherwise want to. And colleges and universities can not only force a student to go to class with blacks-- they can force a student to live in a dorm room with a black roommate. When you decide to go to a public university and live in its dorms, your

One more thing. Those of you who are politically conservative and are attacking the university here might remember that one of the arguments made by The Citadel and VMI in defending their single-sex status was that they basically ruled every aspect of their students' lives 24-7 when they were enrolled, and that having women in there might disrupt the atmosphere. If there was really a right of intimate association that any public university student could claim, how was any of that constitutional, leaving aside the issue of gender discrimination? How could a public university force students to leave their barracks doors open, for instance, so that they could be hazed by upperclassmen while they were at their residences?

There is a great desire to defend this speech precisely because it is racist and politically incorrect. Indeed, I have defended quite a lot of racist speech as fully protected by the First Amendment. But a public university student and dorm resident's intimate association rights simply do not extend to permit race discrimination that is antithetical to the core educational mission of the university.
2.28.2008 12:52pm
Elliot123 (mail):
If a student doesn't want to have vistors of a given race, what's the problem?
2.28.2008 2:23pm
Richard Aubrey (mail):
Well, Elliot, if we tighten up the question to specify who doesn't want whom, some of the possibilities are a problem and antithetical to the core mission of the university.
A "no whites" sign would be just dandy.
2.28.2008 3:58pm
Elliot123 (mail):
Has anyone been to one of the univs which has black-only dorm wings? Do the still exist? Is the racial status of the wing noted in any signage?
2.28.2008 4:29pm
Big Bill (mail):
Geez, gentlemen, the language. "Racist dirtbag"? Consider these facts: the students in question belong to a religion that believes contact with blacks will render its adherents ritually unclean: God will not listen to their prayers until they "wash the black off". "Nothing personal" they say to the black students who take offense, "it's our religion". Are they still dirtbags? And what kind of accomodation must the University make?
2.29.2008 7:28pm