Academic journal article
By Press, Joshua S.
Northwestern University Law Review , Vol. 102, No. 2
Plainly . . . no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their Junctions, such as courts, libraries, schools, and hospitals.[double dagger]
For almost twenty years,1 society and the courts have struggled to harmonize the principles of the Fourteenth Amendment's Equal Protection Clause2 and the First Amendment's Free Speech Clause.3 The tension between these two clauses has preoccupied the bench, legal thinkers, and ordinary citizens alike. But rarely do these two dictates conflict more than in the context of "hate speech," or antilocution regulation,4 and universities' antiharassment policies,3 or-as they are more disparagingly known-"campus speech codes."6
Defenders of these policies argue that proscribing antilocution protects everyone against threats, intimidation, and harassment.7 Opposing groups argue that government should never regulate the expression of unpopular or disfavored ideas.8 From cross burning9 and hanging nooses,10 to Nazi demonstrations" and offensive protests at military funerals,12 the First Amendment assigns to American governments a difficult task: to tolerate intolerance.13 Yet despite the fact that courts have almost universally rejected campus speech policies for violating this command,14 many universities continue to implement them.15
Regrettably, altercations and threats made from discriminatory animus continue to occur on college campuses today. For example, on October 14, 2005, students held a "straight thuggin'" party in a University of Chicago residence hall16 that outraged minority student groups and the local community.17 Such stereotype-themed parties are increasingly common in university life;18 they often feature students dressed as caricatures of minorities, sometimes in blackface,19 or even as Ku Klux Klan members with nooses.20 In early October 2006, three students at Texas A&M University posted a video online with one student acting as a slave master and another in blackface "chomping a banana and begging mercy from his 'master.'"21 On July 15, 2007, and in early August of that year, more threatening expression was used when nooses were found by a Black22 cadet and a white female officer at the Coast Guard Academy, respectively.23 A parallel event occurred on September 6, 2007, when someone hung a noose in a tree close to a University of Maryland cultural center where several Black student groups were housed.24 Similarly, on October 11, 2007, "a swastika and a caricature of a man wearing a yarmulke" were drawn on a bathroom stall door at Columbia University.25 Such racial tension turned into violence on January 24, 2007, when three Palestinian college students were allegedly attacked and made "targets of ethnic slurs" as they attempted to leave their dormitory at Guilford College in Greensboro, North Carolina.26 These events provide a stark reminder of why many university speech policies persist. Several legal groups, however, have targeted college antilocution policies, arguing that they are unconstitutional "speech codes" because they typically disfavor racist, sexist, or even religious forms of speech.27
But despite these groups' fear that such policies represent governmental attempts to control or favor certain political ideas in public debate,28 most antilocution policies in the limited context of college dormitories should be considered constitutionally permissible. Unlike broader speech codes, dormitory policies should not be viewed as attempts to control students' thought or censor merely "offensive speech."29 Instead, these policies encourage and allow students of all backgrounds to attend universities by attempting to create a safe, calm, and hospitable living environment that is conducive to learning. …