THE UWM POST et al. v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN 774 F. Supp. 1163; 1991
ROBERT W. WARREN, SENIOR UNITED STATES DISTRICT JUDGE
A. DEVELOPMENT OF THE UW RULE
In May of 1988, the Board of Regents adopted "Design for Diversity," a plan to increase minority representation, multi-cultural understanding and greater diversity throughout the University of Wisconsin System's 26 campuses. Design for Diversity responded to concerns over an increase in incidents of discriminatory harassment.
Design for Diversity directed each of the UW System's institutions to prepare non-discriminatory conduct policies. . . .On June 9, 1989, the Board [of Regents] adopted the UW Rule by 12 to 5 vote.
B. THE UW RULE
The UW Rule provides:
UWS 17.06 Offenses defined. The university may discipline a student in non-academic matters in the following situations.
. . .
(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 behavior or physical conduct intentionally:
1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and
2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.
(b) Whether the intent required under par. (a) is present shall be determined by consideration of all relevant circumstances.
(c) In order to illustrate the types of conduct which this subsection is designed to cover, the following 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 the person in whose 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 a 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 as stated, there seems no evidence that the student's purpose was to create a hostile environment.
Wis. Admin. Code § UWS 17.06(2).
Thus, in order to be regulated under the UW Rule, a comment, epithet or other expressive behavior must:C. ENFORCEMENT OF THE UW RULE
(1) Be racist or discriminatory;
(2) Be directed at an individual;
(3) Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual addressed; and
(4) Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.
To date, at least nine students have been sanctioned under the UW Rule:
(1) The University of Wisconsin -- Parkside found that a student used inappropriate language when he called another student "Shakazulu." . . .
(2) The University of Wisconsin -- Eau Claire found that plaintiff John Doe violated the UW Rule by yelling epithets loudly at a woman for approximately ten minutes, calling her a "fucking bitch" and "fucking cunt." . . .
(3) The University of Wisconsin -- Oshkosh disciplined a student for angrily telling an Asian-American student: "It's people like you -- that's the reason this country is screwed up" and "you don't belong here." . . .
(4) The University of Wisconsin -- Stevens Point found that a student harassed a Turkish-American student by impersonating an immigration official and demanding to see immigration documents. . . .
(5) The University of Wisconsin -- Stout charged a student involved in a physical altercation with two residence hall staff members with calling one of them a "piece of shit nigger" and the other a "South American immigrant." . . .
(6) The University of Wisconsin -- Eau Claire disciplined a student under the UW Rule for sending a message that stated, "Death to all Arabs!! Die Islamic scumbags!" on a university computer system to an Iranian faculty member. . . .
(7) The University of Wisconsin -- Stevens Point brought a disciplinary action under the UW Rule against a student who stole a[n] [ATM] card and access number belonging to his dormitory roommate, who is Japanese. . . . The student . . .admitted that he was motivated by his resentment that his roommate is Japanese and does not speak English well. . . .
(8) The University of Wisconsin -- Oshkosh disciplined a female student under the UW Rule for referring to a black female student as a "fat-ass nigger" during an argument.
(9) The University of Wisconsin -- River Falls disciplined a male student under the UW Rule for yelling at a female student in public, "you've got nice tits." . . .
[The above students were placed on probation and ordered to perform restitution or community service as well as receive education or counseling. One other student was initially charged with calling a student a "redneck" but no discipline was taken.]
Plaintiffs argue that this Court should strike down the UW Rule because it violates the overbreadth and vagueness doctrines.
Plaintiffs first argue that the UW Rule is invalid because it is facially overbroad. It is fundamental that statutes regulating First Amendment activities must be narrowly drawn to address only the specific evil at hand. Broadrick v. Oklahoma, 413 U.S. 601 (1973). . . .
Plaintiffs argue that the UW Rule has overbreadth difficulties because it is a content-based rule which regulates a substantial amount of protected speech. . . .
Although the First Amendment generally protects speech from content-based regulation, it does not protect all speech. The Supreme Court has removed certain narrowly limited categories of speech from First Amendment protection. These categories of speech are considered to be of such slight social value that any benefit that may be derived from them is clearly outweighed by their costs to order and morality. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The categories include fighting words, obscenity and, to a limited extent, libel.
The Board of Regents argues that the UW Rule falls within the category of fighting words. In the alternative, the Board asserts that the balancing test set forth in Chaplinsky leaves the speech regulated by the UW Rule unprotected by the First Amendment. . . . Finally, the Board asserts that, even if the Court finds the rule, as written, unconstitutional, it may apply a narrowing construction which limits the rule's reach to unprotected speech.The Supreme Court in Chaplinsky set out the fighting words doctrine. The Chaplinsky Court stated:
(1) WHETHER THE SPEECH REGULATED BY UW RULE FALLS WITHIN THE FIGHTING WORDS DOCTRINE.
(a) The Fighting Words Doctrine. . .
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
The Supreme Court has reduced the scope of fighting words to include only words which tend to incite an immediate breach of the peace. . . .
[I]n order to constitute fighting words, speech must not merely breach decorum but also must tend to bring the addressee to fisticuffs. See Texas v. Johnson.
Finally, in Cohen v. California, the Supreme Court held that fighting words must be directed at the person of the addressee.
(b) APPLICATION OF THE FIGHTING WORDS DOCTRINE TO THE UW RULE.
. . . Since the elements of the UW Rule do not require that the regulated speech, by its very utterance, tend to incite violent reaction, the rule goes beyond the present scope of the fighting words doctrine.
The first element of the UW Rule, which requires that the speech be racist or discriminatory, describes the content of the speech regulated but does not state that the speech must tend to cause a breach of the peace. The second element, which requires that the speech be directed at an individual, meets the requirement set forth in Cohen that the speech be "directed to the person of the hearer." In addition, the second element makes it likely that the rule will cover some speech which tends to incite violent reaction. Nevertheless, this element does not require that the regulated speech always tend to incite such reaction and is likely to allow the rule to apply to many situations where a breach of the peace is unlikely to occur.
The third element of the UW Rule requires that the regulated speech demean an individual's race, sex, religion, etc. This element addresses the concerns of the now defunct first half of the fighting words definition. Words which demean a person's race, sex, religion, etc. are likely to inflict injury and affect a person's sensibilities. Nonetheless, the third element of the UW Rule does not address the concerns of the second half of the fighting words definition. Speech may demean an individual's characteristics without tending to incite that individual or others to an immediate breach of the peace.
The fourth element of the UW Rule requires that the prohibited speech create an intimidating, hostile or demeaning environment. An intimidating, hostile or demeaning environment certainly "disturbs the public peace or tranquility enjoyed by the citizens of [a university] community." However, it does not necessarily tend to incite violent reaction. . . . . . .. Since the UW Rule covers a substantial number of situations where no breach of the peace is likely to result, the rule fails to meet the requirements of the fighting words doctrine.
(2) WHETHER THE BALANCING TEST SET FORTH IN CHAPLINSKY LEAVES THE SPEECH REGULATED BY THE UW RULE UNPROTECTED.
The Board of Regents next argues that the UW Rule is in harmony with the First Amendment because it only regulates speech with minimum social value and which has harmful effects. The Board asserts that this balancing approach is consistent with the Supreme Court's holding in Chaplinsky. In support of this assertion, the Board notes that while the Chaplinsky Court created a per se rule with respect to fighting words, it used a balancing approach to reach this result.
The Board apparently believes that the Supreme Court referred to its balancing approach when it stated:
It has been well observed that ["fighting words"] 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."
The Board is correct that the Chaplinsky Court employed a balancing approach to determine that "certain well-defined and narrowly limited classes of speech," such as fighting words, do not deserve First Amendment protection. However, the Chaplinsky Court did not state that lower courts should employ a balancing approach to identify additional categories of speech undeserving of protection. . . .
The Court has, to be sure, permitted content-based restrictions when the speech at issue has fallen within one of those special and limited categories of expression, such as obscenity, false statements of fact, or fighting words, that the Court has found to be of such low value in terms of the historical, philosophical, and political purposes of the amendment as to be entitled to less than full Constitutional protection. Outside this "low value" realm, however, the Court has embraced a stringently speech-protective set of standards, sustaining content-based restrictions of "fully protected" expression in only the most extraordinary circumstances.
Since the UW Rule regulates speech based upon its content, it is not proper for this Court to apply a balancing test to determine the constitutionality of the rule. Moreover, this Court finds that, even under the balancing test proposed by the Board of Regents, the rule is unconstitutional.
(a) BENEFITS SIDE OF BALANCING TEST
On the benefits side of its proposed balancing test, the Board of Regents argues that the discriminatory speech proscribed by the UW Rule has little or no social value since it does not serve as a "step to the truth." The Board states that the proscribed speech lacks social utility because it: (1) is not intended to inform or convince the listener; (2) is not likely to form any part of a dialogue or exchange of views; (3) does not provide an opportunity for reply; (4) constitutes a kind of verbal assault on the person to whom it is directed and (5) is likely to incite reaction.
The Board first asserts that the speech proscribed by the UW Rule is not intended to inform or convince its listener. The Court disagrees with this assertion. Most students punished under the rule are likely to have employed comments, epithets or other expressive behavior to inform their listeners of their racist or discriminatory views. In addition, nothing in the UW Rule prevents it from regulating speech which is intended to convince the listener of the speaker's discriminatory position. Accordingly, the rule may cover a substantial number of situations where students are attempting to convince their listeners of their positions. n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 For example, it is likely that the University of Wisconsin -- Oshkosh student disciplined for his comments to an Asian-American student wished to convince his listener that he did not belong in America.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Moreover, even if the UW Rule did not regulate speech intended to inform or convince the listener, the speech the rule prohibits would be protected for its expression of the speaker's emotions. The Supreme Court has held that the Constitution protects speech for its emotive function as well as its cognitive content. See Cohen. "We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." Most, if not all, of the cases covered by the UW Rule are likely to involve speech which expresses the speaker's feelings regarding persons of a different race, sex, religion, etc.
The Board next asserts that the regulated speech lacks First Amendment value because it is unlikely to form any part of a dialogue or exchange of views and because it does not provide an opportunity for a reply. In American Booksellers, the Seventh Circuit addressed and rejected these arguments.
Much of [defendant's] argument rests on the belief that when speech is "unanswerable," and the metaphor that there is a "marketplace of ideas" does not apply, the First Amendment does not apply either. The metaphor is time honored; Milton's Aeropagitica and John Stewart Mill's On Liberty defend freedom of speech on the ground that the truth will prevail, and many of the most important cases under the First Amendment recite this position. The Framers undoubtedly believed it. As a general matter it is true. But the Constitution does not make the dominance of truth a necessary condition of freedom of speech. To say that it does would be to confuse an outcome of free speech with a necessary condition for the application of the amendment.
Thirdly, the Board states that the prohibited speech constitutes a kind of verbal assault on the addressee. However, the Supreme Court has already performed a balancing test with respect to speech which inflicts injury and has found it to be worthy of First Amendment protection. Accordingly, it would be improper for this Court to find the speech regulated by the UW Rule unprotected based upon its assaultive characteristics.
Finally, the Board argues that the prohibited discriminatory speech lacks First Amendment value because of its tendency to incite reaction. While the Board is correct that the discriminatory speech prohibited by the UW Rule may in many circumstances tend to incite violent reaction, the rule prohibits speech regardless of its tendency to do this. The Supreme Court has clearly defined the category of speech which is unprotected due to its tendency to incite violent reaction. This category of speech is limited to speech which by its very utterance tends to incite an immediate breach of the peace. It would be improper for this Court to expand the Supreme Court's definition of fighting words to include speech which does and speech which does not tend to incite violent reaction.
(b) COSTS SIDE OF BALANCING TEST
On the costs side of the balance, the Board of Regents asserts that speech regulated under the UW Rule inflicts great harm since it prevents the universities from meeting several "compelling interests": (1) increasing minority representation; (2) assuring equal educational opportunities; (3) preventing interruption of educational activities; and (4) preserving an orderly and safe campus environment. Each of these asserted compelling interests has substantial difficulties. Accordingly, the costs side, like the benefits side, of the Board's balancing equation fails to support the constitutionality of the UW Rule.
The Board's first asserted compelling interest is increasing minority representation to add to the diversity of University of Wisconsin System campuses. Increasing diversity is "clearly a constitutionally permissible goal for an institution of higher education." University of California Regents v. Bakke, 438 U.S. 265 (1978). However, the UW Rule does as much to hurt diversity on Wisconsin campuses as it does to help it. By establishing content-based restrictions on speech, the rule limits the diversity of ideas among students and thereby prevents the "robust exchange of ideas" which intellectually diverse campuses provide.
The Board's second asserted compelling interest is the provision of equal educational opportunities in accordance with the Fourteenth Amendment. The Board notes that the Supreme Court has stated: "The opportunity for an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." See Brown v. Board of Education, 347 U.S. 483, 493, 98 L. Ed. 873, 74 S. Ct. 686 (1954). However, the Board of Regents presents no evidence that it is not already providing education on equal terms. Any inequality in educational opportunities addressed by the UW Rule is due to the discriminatory activity of students, not University of Wisconsin System employees. Since students are generally not state actors, the Board's Fourteenth Amendment equal protection argument is inapplicable to this case.
The Board's third asserted compelling interest is preventing interruption of educational activities. In support of this assertion, the Board cites a series of Supreme Court cases which permit schools to control the activities of students which interfere with the opportunity of other students to obtain an education. However, these cases allow time, place and manner restrictions on speech, not restrictions based upon the speech's content.
Moreover, the Board's argument under this asserted compelling interest is inconsistent with the limits of the fighting words doctrine. In its briefs, the Board has argued that the UW Rule does not cover speech within the classroom. Accordingly, it has been forced to argue that discriminatory speech interrupts educational opportunities because of its negative psychological effects on students. However, this argument is inconsistent with the fighting words doctrine which leaves protected words which inflict injury.
Finally, the Board asserts that it has a compelling interest in maintaining safety and order on its campuses. In support of this assertion, the Board again argues that speech regulated by the UW Rule is likely to provoke violent reaction. However, as stated above, a substantial portion of the speech regulated by the rule is not likely to provoke such a reaction. Accordingly, this Court must find that the Boards' final proposed interest is not compelling.
Because the UW Rule fails under both the fighting words doctrine and the UW System's proposed balancing test, this Court must find the rule overbroad and therefore in violation of the First Amendment. . ..
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 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. . . . . Accordingly, this Court ORDERS: . . . that the Board of Regents and its agents and employees are permanently enjoined from enforcing the UW Rule . . .