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‘Free Speech’ Becomes Primary Issue in Auburn ‘Blackface’ Case

‘Free Speech’ Becomes Primary Issue in Auburn ‘Blackface’ Case
Suspended fraternity members file lawsuit against university citing violation of constitutional, civil rights
By Erik Lords

The issue of free speech is at the heart of a lawsuit filed last month by suspended members of the fraternity Beta Theta Pi against Auburn University. The university suspended 10 members of two White fraternities — Beta Theta Pi and Delta Sigma Phi — following a Halloween party where members performed mock lynchings, paraded in blackface and donned homemade Ku Klux Klan hoods. Members of Delta Sigma Phi said they are also considering legal action.
The antics were enough for Auburn officials to suspend members of the fraternities last month and enough for the national headquarters of both fraternities to quickly disband their Auburn chapters.
But regardless of how offensive the students’ outlandish behavior might be, the First Amendment protects it, several legal experts told Black Issues. So while Auburn’s swift discipline drew praise from African American students and administrators and others nationwide (see Black Issues, Dec. 6), the university might find itself on the legal hot seat for disciplining the students, legal scholars say.
“This is the hardest thing for people to understand: The First Amendment protects free speech, regardless of how offensive it is,” says Robert Sedler, a constitutional law professor at Wayne State University and an expert on First Amendment law. “And that means tolerating an awful lot of hurtful speech. It’s similar to flag burning. No matter how much that turned patriotic people off, it was protected by the Constitution.”
Meanwhile, a judge has ordered Auburn to reinstate all 10 suspended students,
but did not bar the university from taking other disciplinary action, including expulsion. Janet McCoy, a spokeswoman for the university, told Black Issues she did not know whether the university planned to take other action against the students.
Auburn’s president, William Walker, did not return calls seeking comment. Nor did Lee Armstrong, an attorney for Auburn. The lawsuit, which seeks $300 million in compensatory and punitive damages ($1 million for each member of the fraternity), names Walker as a defendant, along with the Auburn University Board of Trustees; Auburn’s director of student affairs, Wes Williams; and the national office of Beta Theta Pi fraternity, which shut down the Auburn chapter.
Romaine Scott, an attorney based in Birmingham, Ala., who is representing the plaintiffs, also did not immediately return calls.
The lawsuit claims that Auburn officials and the national office of the fraternity violated the students’ constitutional and civil rights, including freedom of speech, freedom of association and privacy guaranteed by the First and 14th amendments.
The fraternity also claims the university’s standards on student conduct, particularly those dealing with racial issues, cannot be enforced because they are unconstitutionally vague. The plaintiffs claim university officials defamed them by identifying them as racists.
Photographs from the Beta Theta Pi party show many members mimicking gang
hand-signals and wearing blackface, gold jewelry, Afro wigs, and purple and gold T-shirts bearing the Greek letters of Omega Psi Phi, a historically Black fraternity. The pictures were posted on a Web site where customers can view and buy copies of pictures taken at various events.
The incidents became one of the most talked about issues on the Internet last month among African Americans and others, many expressing shock and anger. Lloyd Jordan, the national president of Omega Psi Phi, called for the Auburn students to be expelled.
Walker told the Birmingham News that he was pleased with the disciplinary steps the university had taken, but declined to discuss the court action. Williams, the Auburn vice president for student affairs, says, “I think they have the right to go to the courts. I’m disappointed that this has been elevated to the courts. I thought we could work it out.”

As events in Alabama unfold, the larger question arises: If such actions are
protected by the Constitution, what would prevent similar acts from occurring at other colleges in the future?
“Free speech is one of the bedrock principles of the First Amendment,” Sedler says. “And the Supreme Court says you cannot prohibit speech on the grounds that it is offensive.”
In addition, university discipline can often lack teeth because the language in harassment policies and student codes of conduct “tends to be very broad, such that colleges open themselves up to a vagueness charge,” says Susan Low Bloch, a professor at the Georgetown University Law Center in Washington, and an expert on constitutional law.
In terms of setting a legal precedent however, Bloch says not too much should be read into a county judge ordering Auburn to reinstate the students.
“It means the judge thinks there is a pretty good chance they will win on the merits,” she says. “Also that he felt it might cause too much harm to them to keep them out of school. They would be losing their academic semester.”
The outcome, Bloch says, could hinge on how well Auburn tailored its harassment policies, which it cited when suspending the students in the first place.
“If the Auburn students win, it would tell the university to look at its policies to ensure that they are narrowly tailored, but sufficiently protective of the students’ First Amendment rights,” Bloch says. 

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