After unconstitutionally punishing a fraternity for allowing blackface at one of its parties — expressive conduct that is protected by the First Amendment, see Iota Xi v. George Mason Univ. (4th Cir. 1993) — GSU seems to be unconstitutionally punishing the fraternity’s critics:
Georgia State University suspended a black student organization Thursday after finding it [discriminatorily] harassed a member of a fraternity that had hosted a party where two students appeared in blackface.
The Black Student Alliance, an umbrella organization of black student groups, also violated university policy by distributing an intentionally misleading flier on campus that told students about the party, the university found.
The blackface incident at a party thrown by the nearly all-white Pi Kappa Alpha chapter spurred campus protests and public forums at one of Georgia’s most diverse state universities. Almost one-third of the 28,000 students at Georgia State are African-American.
At one of those forums, an African-American student who is a member of Pi Kappa Alpha said he was called derogatory names by members of the Black Student Alliance. The student, Rick Burt, later filed a complaint saying the alliance fliers had depicted his fraternity as racist, stirred up outrage, and subjected him to harassment. . . . The senior, who said he is the only black active member of his fraternity, said he was called a “Sambo” and an “Uncle Tom.”
The fliers included a photo taken from the Internet, reportedly of students from another university, in blackface and white hooded robes. It read: “Happy Black History Month from your Friends of Pi Kappa Alpha.” . . .
The Black Student Alliance will be suspended through Dec. 19. . . . Its members must perform at least 200 hours of community service, and its executive leaders have to complete a diversity education program.
Last week, the university suspended the fraternity Pi Kappa Alpha through Dec. 19 for the blackface incident. . . . [Pi Kappa Alpha] has to participate in community service and apologize in writing to the predominantly African-American fraternity Phi Beta Sigma, which filed the complaint about the party.
A university may punish groups for knowingly false statements (just as the government may generally punish people for such statements), but the punishment for merely “misleading” speech strikes me as quite troubling, especially if the fliers were likely to be seen as hyperbole rather than a factual allegation that PKA actually wore blackface and white hooded robes (see Hustler v. Falwell). If a university thinks statements are actually knowingly false, and likely to be perceived by readers as factual allegations, then it should punish the group on those grounds. Attempts to suppress “misleading” speech are much more troublesome, given how vague the term “misleading” is, and how much speech is claimed to by misleading by those who disagree with it.
Likewise, while I think that calling people racial insults is contemptible, it seems to me that the black students are entitled to remonstrate, even in contemptible ways, with fellow blacks whom they see (however misguidedly) as being insufficiently loyal to their race. If Burt was physically threatened with harm, the matter would be different; but the story suggests the accusation was simply of name-calling, not of threats.
Of course, this is also an illustration of a broader point: It is not in the interest of minorities for the authorities to get more power to suppress speech. Even if the power is at first used in a way that seems to be in the minorities’ interest (for instance, to suppress supposedly racist speech by whites), it’s very likely that it will ultimately be turned against the minorities, probably even more often than against the majority.
Free speech has been an important tool — quite likely the most important tool — that nonwhites, women, and homosexuals have used in the civil rights, women’s rights, and gay rights movements. It’s both a moral mistake and a pragmatic mistake for leaders of those groups to now turn against free speech, and try to erode its protections.
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