The John William Pope Center for Higher Education Policy (logo)
RSS feeds

Commentaries
The First Amendment Ainít BrokeóDonít Fix It

Two commissions created to deal with issues raised by hateful graffiti written at N.C. State should favor constitutionality over political urgency.

By Jay Schalin

Comments

December 19, 2008

An ugly incident occurred at North Carolina State University the day after the November 4 presidential election. In the school’s “Free Expression Tunnel,” where all graffiti has traditionally been permitted, four students were caught on camera writing the following: "Hang Obama by a noose," and "Let's shoot that n----- in the head!"

The graffiti was painted over the next day, and N.C. State chancellor James Oblinger released a statement condemning the act. As can be expected, the graffiti caused an uproar. Some students claimed they did not feel safe on campus. Various groups demanded that the students be identified or expelled. Others sought hate crime legislation at the university level, and mandatory diversity training, and so on.

In response, Oblinger and university system president Erskine Bowles called for the formation of committees or task forces to address the issues raised by the incident.

Hugh Stevens, a Raleigh-based attorney and First Amendment scholar, pointed out that, through all the rhetoric and emotion, one view of the incident has received less attention than it merits: the current system worked quite well. He made these comments at the first meeting of Bowles’ UNC commission on Wednesday, December 17.

The successful process began with the discovery of the racist graffiti. Any threat to the life or person of a president (or president-elect) requires immediate action, and the school notified the Secret Service, who came to Raleigh and determined that the students were no real danger to Barack Obama.

The incident also raised concerns about public safety. The North Carolina state police conducted a threat assessment, and decided that the students involved were also not a threat to the university community.

Chancellor Oblinger also said that the university checked whether the graffiti could be considered racial harassment, which is punishable under the Code of Student Conduct, and decided that it was not—legally, harassment must be directed at the individual or group harassed, not at a distant political figure. It was not even vandalism, a common charge for painting graffiti, since it occurred at a spot designated for that purpose.

Because no crime was committed, the incident is a free-speech matter. It therefore falls under First Amendment guidelines, and offensive political speech is explicitly protected by that amendment. The four students cannot be punished for legal conduct.

And because it is a student issue, it is subject to the federal Family and Education Right to Privacy Act, which prevents the university from revealing the students’ identities.

By treating the affair seriously, while initially resisting the clamor to punish the students beyond legal constraints, the N.C. State administration has so far managed to turn a potentially explosive affair into something educational. All of the students involved have issued apologies, and the student who actually wrote the graffiti has agreed to undergo diversity training and perform community service chosen by the university.

Additionally, rallies, meetings and forums have occurred across the campus denouncing the students and their angry words.

Stevens, whose involvement with free-speech issues dates back over forty years to the “Speaker Ban” controversy during his undergraduate days at UNC-Chapel Hill, offered his analysis:

“I have no question that the sentiments that were posted in the Free Expression Tunnel in the wake of the presidential election were…vile, despicable, and clearly unworthy of the students who posted them …But I also concur with all of the authorities who also concluded that they were protected by the First Amendment to the Constitution of the United States.”

He said he felt that “critics and commentators” were focusing too much on seeking punishment for the four students, and not enough on “celebrating the hundreds of students who responded to these sentiments by exercising their own rights of free speech, and rallying in support of the proposition that these sentiments were not typical of N.C. State students, that they were offensive and entirely inappropriate.”

“This whole episode was one in which the First Amendment worked pretty much the way James Madison hoped and expected it would. Somebody said something that was objectionable and offensive, and others won the day by, not shouting them down, but at least talking them down and making their own sentiments plain,” Stevens concluded.

Perhaps, the shows of overwhelming opposition to the anti-Obama postings and the voluntary agreements to explore a change of heart by the perpetrators would seem to be the proper place for this matter to end.

Yet, there are many who do not wish this particular matter to be laid to rest, primarily William Barber, the head of the North Carolina NAACP, and some N.C. State students. They have continually pressed for the university to overstep its authority to punish the students involved.

By convening their respective commissions, Oblinger and Bowles have already yielded to this political pressure, and policy changes resulting from their actions could do much more harm than did four immature students and a can of spray paint. While universities should review their student conduct policies on a regular basis, the political aspects of this recent incident could instill a sense of urgency to act—with the potential unintended consequences of that action overlooked or ignored.

The Campus Culture Task Force at N. C. State has 25 members, three co-chairs, and a broad, almost open-ended mandate. It is expected to address almost all facets of the campus with respect to diversity, “personal and civic responsibilities,” student conduct, the school’s ability to deal with inappropriate behavior, and possible guidelines for the Free Expression Tunnel. Much of the first meeting at the end of November was spent on a presentation by a professor on “the history of how racial slurs impact the African American community and produce a fearful mindset,” according the school newspaper, The Technician.

The UNC committee, headed by the system’s senior vice president for academic affairs, Harold Martin, was given two main charges by Bowles. The first is to explore the possibility of a system-wide student code of conduct that will address so-called “hate crimes” like the Free Expression Tunnel affair. The second is to “consider the development of a university-wide requirement for diversity orientation for all incoming students.”

The first type of possible policy changes resulting from the two commissions—strengthening the punitive abilities of the universities for hate crimes—will be subject to intense scrutiny for its adherence to the constitutions (both state and national). The law is explicit on when speech can punished, and any infringement by student conduct codes on First Amendment rights will be certain to face legal challenges.

The second class of changes is to mandate diversity training, either as general education course requirements (in the case of N.C. State), or as freshmen orientation programs (favored by the UNC commission). Such mandates are also problematic. There is often an assumption made in academia that only one viewpoint of diversity is correct—that society should realign itself to accommodate small groups, rather than the traditional perspective that expects such groups to conform to the general society while still maintaining their individual freedom to live and believe as they choose (e pluribus unum, anyone?). Many of the committee members have a long history as proponents of the former view of diversity. According to Laura Luger, the university system’s legal counsel, UNC “ may not pressure students to agree with certain views—this would be a form of coerced speech constitutionally.” Therefore, an orientation program that promotes a particular viewpoint of diversity might violate Luger’s definition of “important constitutional considerations.”

Stevens suggested that orientation might be a way to ease the transition from high school to college—from a “a very sheltered environment, in at least a First Amendment sense, to an environment that has traditionally been very open and free.”

Yet orientation programs designed by diversity experts have been challenged across the country. The most publicized case features the University of Delaware, in which students have been coerced to accept a view of the United States as an oppressive society.

The university system and its constituent universities should be cautious about creating new rules and systems, with the intent to make all feel welcome, which instead condemn students with a traditional view of society and demands that they change. The current system worked extremely well this time, as Hugh Stevens so eloquently stated, and it is likely to work well in the future. If these commissions are to have any positive effect, they will refrain from making the campuses more restrictive and more coercive. It would be best if they instead tried to focus on making the university rules align more precisely with the First Amendment, and to make sure that all students are knowledgeable about their rights to free expression.


 


Please observe the Pope Center's commenting policy.


blog comments powered by Disqus

Return to the Commentaries Archive

Copyright © 2014 The John William Pope Center for Higher Education Policy | Site Map

Website design and development by DesignHammer Media Group, LLC. Building Smarter Websites.